A & a Australian Investments Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1464

Land and Environment Court

New South Wales

Medium Neutral Citation:

A & A Australian Investments Pty Ltd v City of Parramatta Council [2023] NSWLEC 1464

Hearing dates:

Conciliation Conference 31 May 2023, 11 and 24 July 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Building Information Certificate BC/42/2020 remains in force.

(3) The applicant is to carry out the works set out in Annexure A by 28 October 2023.

(4) Upon the applicant finalising the works set out in Annexure A to the satisfaction of the respondent, pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979, the respondent is directed to issue a building information certificate in respect of the unauthorised works undertaken at 18 Burke Street, Telopea, identified in Annexure A, including the:

(a) installation of privacy screens,

(b) construction of a pergola, and

(c) construction of decks and seats at the rear and side of the property.

(5) In the event that compliance with Order 3 is not achieved within 14 days of the date specified, the respondent has liberty to apply to the Court to restore the proceedings to the list. The proceedings are to be relisted 7 days following any such application.

Catchwords:

APPEAL – Building Information Certificate – action required before Building Information Certificate can be issued – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.25, 6.26, 8.25

Land and Environment Court Act 1979, ss 17, 34

Parramatta Local Environmental Plan 2011

Parramatta Local Environmental Plan 2023

State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 2.6

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

A & A Australian Investments Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
A Perkins (Solicitor) (Applicant)
B Stephen (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

22/378493

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s part refusal of the applicant’s Building Information Certificate (No. 42/2020) (BIC Application) relating to Lot 145 in Deposited Plan 36691, known as 18 Burke Street, Telopea (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The BIC Application was lodged by the applicant on 7 April 2020 in relation to the following works undertaken at the Site:

1. privacy screens;

2. pergola;

3. decks; and

4. seats.

4. Following various communications between the parties and the provision of amended plans by the applicant, the respondent issued a Building Information Certificate Notice of Determination (BC/42/2020) on 6 July 2022 under ss 6.25 and 6.26 of the EPA Act which relevantly stated:

“Building Information Certificate for pergola and deck to the side of the existing dwelling only, in accordance with the following plan: Site Plan, Revision A, prepared by Corona Projects, Dated 1/07/2022. Excluding: Any portion of the works that encroach within 900mm to the private property boundary.”

5. The Building Information Certificate therefore excluded the following works undertaken on the Site, to the extent those works encroached within 900mm to the private property boundary:

1. installation of privacy screens;

2. construction of a pergola; and

3. construction of decks and seats in the rear and side of the Site.

4. (together, the Unauthorised Works).

6. On 15 December 2022, the applicant commenced these Class 1 proceedings under s 8.25(1) of the EPA Act in respect of the respondent’s refusal of the BIC Application for the Unauthorised Works.

7. The parties agree that the proceedings were commenced within the appeal period prescribed by s 8.25(2) of the EPA Act.

8. On hearing an appeal in connection with a building information certificate under s 8.25(1) of the EPA Act, pursuant to s 8.25(3), the Court may do any one or more of the following –

(a)  direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b)  revoke, alter or confirm a notice to supply information,

(c)  make any other order that it considers appropriate.

9. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 31 May 2023, 11 and 24 July 2023. I presided over the conciliation conference.

10. Following the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the appeal to be upheld, the applicant to carry out specified works, and upon finalising these works to the satisfaction of the respondent, the respondent be directed under s 8.25(3) of the EPA Act to issue a building information certificate in respect of the unauthorised works undertaken at the Site, including the:

1. installation of privacy screens;

2. construction of a pergola; and

3. construction of decks and seats at the rear and side of the property,

4. (collectively, the BIC Works).

11. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

12. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The applicant is the registered proprietor of the Site upon which the Unauthorised Works were constructed (and upon which the BIC Works are proposed to be carried out) and provided consent to the BIC Application when it was lodged with the respondent.

2. The BIC Works comprise “alterations and additions” to a dwelling house. Alterations and additions to dwellings are permissible with consent in the R4 High Density Residential zone under the Parramatta Local Environmental Plan 2011 (PLEP 2011), being the zone in which the Site is located.

3. The BIC Application was notified to surrounding properties by the respondent between 30 April 2020 and 18 May 2020. One submission was received which raised the issue of privacy and noise impacts. I accept the respondent’s submission that it has considered this submission in its assessment of the BIC Application and the proposed BIC Works.

4. I accept the parties’ position that the BIC Works do not breach any development standard in the PLEP 2011 and that there are no issues raised by the commencement of the Parramatta Local Environmental Plan 2023.

5. I accept the respondent’s submission that it is satisfied that the requirements of Ch 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and are satisfied in relation to the BIC Works.

6. I accept the respondent’s submission that no permit is required under cl 2.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 in relation to the BIC Works.

7. I accept the parties’ submission that the BIC Works comply with the key controls and objectives of the Parramatta Development Control Plan 2011.

13. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. The Court orders that:

1. The appeal is upheld.

2. Building Information Certificate BC/42/2020 remains in force.

3. The applicant is to carry out the works set out in Annexure A by 28 October 2023.

4. Upon the applicant finalising the works set out in Annexure A to the satisfaction of the respondent, pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979, the respondent is directed to issue a building information certificate in respect of the unauthorised works undertaken at 18 Burke Street, Telopea, identified in Annexure A, including the:

5. (a) installation of privacy screens;

6. (b) construction of a pergola; and

7. (c) construction of decks and seats at the rear and side of the property.

8. In the event that compliance with Order 3 is not achieved within 14 days of the date specified, the respondent has liberty to apply to the Court to restore the proceedings to the list. The proceedings are to be relisted 7 days following any such application.

N Targett

Acting Commissioner of the Court

Annexure A

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Decision last updated: 22 August 2023