Capelj v District Council of Coober Pedy [2006] SAERDC 97 (21 December 2006)

Last Updated: 22 December 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

CAPELJ v DISTRICT COUNCIL OF COOBER PEDY

[2006] SAERDC 97

Judgment of Commissioner Koukourou and Commissioner Read

21 December 2006

ENVIRONMENT AND PLANNING - BUILDING CONTROL - OTHER MATTERS

Building referee matter - appeal against the Council's refusal to grant consent for the construction of a veranda and carport - appellant carried out development without approval - variation of tolerances from Australian Building Standards - remedial work - appeal allowed - consent granted with conditions.

CAPELJ v DISTRICT COUNCIL OF COOBER PEDY
[2006] SAERDC 97

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	The Property: Allotment 524 Flinders Street, Coober Pedy.
2	The matter involved the completion of construction of a dwelling commenced in approximately 1991 and the construction of a "veranda and a garage (open)".
3	On 12 May 2006 the District Council of Coober Pedy issued a Section 84 Notice for the removal of brickwork and veranda because the owner had carried out development without the approval of Council.
4	Subsequently, on 5 June 2006, the owner applied for development approval for a "veranda and garage (open)" which we take to mean veranda and carport. However Council characterised the application as building additions and veranda. On the same day the applicant received a refusal from Council.
5	The owner appealed to the Environment, Resources and Development Court on 17 October 2006. Two Commissioners of the Court heard the matter.
6	Mr Capelj, owner of the property gave evidence that he purchased the partly completed dwelling in recent times but no exact date was given. The dwelling was constructed to windowsill height with brickwork and timber frame internal walls with steel roof framing and timber ceiling joists. The remainder of the external walls were of temporary construction utilising galvanised iron and fibre cement sheeting. This had rendered the dwelling somewhat useable.
7	Mr Capelj removed all temporary external sheeting and cladding and completed the brickwork, internal cladding and ceilings. He had also laid concrete floors but has not finished the wet areas. A veranda to the rear and a double carport to the side of the house were constructed. These latter two items were the subject of the Development Application.
8	Further evidence by Mr Capelj was that a licensed builder was involved giving him assistance in the construction. He also stated that the roof was tied down to the walls, piers in the garage were connected to the external walls and the ceiling joists were connected to the steel roof truss.
9	Mr Capelj gave evidence that he could not comply with Council’s request to remove the top bricks and re-lay them as the mortar was very strong and to attempt to remove the brickwork would do more damage than good.
10	Very little evidence of a technical nature was given and in particular no engineering calculations or details were available. The Commissioners were therefore forced to rely upon their own expertise and judgment.
11	Mr Riches as Building Surveyor for the Council gave evidence. He informed the Court that he became involved about 12 months ago when Mr Capelj undertook the building work, which included completing the brickwork. In his view the brickwork was outside the tolerances permitted by the Australian Standard in a number of ways. This included bows, out of plumb and perpend and bed joint variations to the Standard.
12	In his evidence he said that Mr Capelj was asked to undertake certain remedial work which was not done, but that other work has been completed now making it difficult to make certain rectifications.
13	On being asked if the existing dwelling had Council approval Mr Riches was not sure as records in Council were not "that good" prior to his involvement with Council since 1995. He believed however that even if there was council approval it would have been out of time. He noted that the brickwork up to sill height was satisfactory.
14	Mr Riches did not believe the site was treated for white ants or the walls had damp proofing. He was concerned at the lack of articulation and the lack of weep holes in the walls. He did concede however that due to the lack of rainfall in Coober Pedy this would not pose a big problem to the dwelling.
15	Mr Riches was concerned predominantly with the variation of tolerances from the Australian Standard. He did concede that the strength of the structure was not in question. In regard to the carport Mr Riches was concerned with flexibility of the structure and had requested Mr Capelj to insert cross bracing which was provided. Mr Riches considers the carport now to be satisfactory with respect to structural integrity. Concern was also raised on lack of cavity to external walls, lack of insulation to provide a five star energy requirement; the type of lintels and the corrosion protection used was questioned.
16	In summary Mr Riches could not justify recommending approval of the development due to the number of non-conforming items and bad workmanship.
17	Having considered the evidence we think that we are entitled to assume that the dwelling as had been purchased by Mr Capelj was approved.
18	We have taken into account the construction of the dwelling as constructed to date.
19	We accept that the documentation lodged for Building Rules Consent was deficient.
20	We also acknowledge that there are some elements that require further work or rectification.
21	Having considered all the evidence and viewed the dwelling, acknowledging that the construction does not comply with standards in a number of respects, but using our judgment and experience, we consider that the structure is sound and meets the objectives of the relevant performance criteria of the Building Code of Australia. As such, building work should be allowed to continue subject to compliance with conditions.
22	We therefore allow the appeal. Building Rules consent should be granted with certain conditions, as set out below.

Conditions

1.	The appellant is to provide to the District Council of Coober Pedy accurate and detailed documentation in accordance with the requirements of the Building Code of Australia for the completion of all wet areas.

2.	Perpend joints at the base of all brick walls to be either cleaned out or holes drilled in the joints to allow ventilation in the cavities. This to be done at 1 m centres.

3.	All window frames in the building to be effectively sealed against the weather.

4.	All remaining building work to be supervised by a licensed builder or licensed building supervisor.