Agg Group Pty Ltd v City of Ryde Council

[2021] NSWLEC 1465

Land and Environment Court

New South Wales

Medium Neutral Citation:

Agg Group Pty Ltd v City of Ryde Council [2021] NSWLEC 1465

Hearing dates:

Conciliation conference on 23 & 30 July 2021

Date of orders:

17 August 2021

Decision date:

17 August 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

See orders at [6] below

Catchwords:

BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.25

Land and Environment Court Act 1979, s 34

Public Health Act 2010, s 7

Category:

Principal judgment

Parties:

Agg Group Pty Ltd (Applicant)
City of Ryde Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
M Chillari (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
City of Ryde Council (Respondent)

File Number(s):

2021/52661

Publication restriction:

No

Judgment

1. COMMISSIONER: Agg Group Pty Ltd has appealed against the Council of the City of Ryde’s decision to refuse its application for a Building Information Certificate BIC2020/0052 (the application) in respect to unauthorised building works at 99 Elliott Avenue, Ryde (site).

2. The appeal is made pursuant to s 8.25 of the Environment Planning and Assessment Act 1979 (EPA Act) and was filed with the Court on 23 February 2021, within 6 months of the Council’s decision..

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 30 July 2021. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement requires the applicant within 90 days of the Court’s orders to undertake the remedial works specified in Schedules 1, 2 and 3 of these orders, and to provide specified certifications to the Council before the issue of a BIC pursuant to s 8.25(3)(a) of the EPA Act.

5. As required by s 34(3) of the LEC Act, I am satisfied that the proposed orders are a decision that the Court can make in the proper exercise of its functions. Section 8.25(3)(a) of the EPA Act gives the Court the power, on the hearing of the appeal, to direct the Council to issue a building information certificate in such terms and on such conditions as the Court thinks fit.

6. Having reached the requisite state of satisfaction, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. Accordingly, the Court orders that:

1. The appeal is upheld.

2. Within ninety (90) days of the date of these Orders, the applicant must:

1. carry out the remedial works specified in Schedules 1, 2 and 3 of these Orders; and

2. provide the following certification to the respondent:

• a certificate from a qualified traffic engineer confirming that the works specified in Schedule 1 have been carried out and comply with Clause 3.2.4 and Figure 3.3 of AS2890.1.

• a certificate from a qualified landscape designer confirming that the works specified in Schedule 2 have been carried out.

• a certificate from a licenced builder confirming that the works in Schedule 3 have been carried out.

3. notify the respondent that it has complied with Order (2)(a)-(b) above.

3. Within seven (7) days of the applicant providing notice to the respondent in accordance with Order (2)(c), the Respondent is directed to issue Building Information Certificate No. BC/2020/0052 pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act1979.

4. The parties are to pay their own costs of the proceedings.

5. The applicant is granted liberty to restore the matter on 2 days' notice if it is unable to comply with the time specified in Order (2) to carry out the remedial works resulting from any NSW Government Public Heath Orders issued under section 7 of the Public Health Act 2010.

…………………………

S Dixon

Senior Commissioner of the Court

Schs 1-3 (1723241, pdf)

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Decision last updated: 06 September 2021