Aoun v Penrith City Council

[2024] NSWLEC 1562

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aoun v Penrith City Council [2024] NSWLEC 1562

Hearing dates:

Conciliation Conference 3 July, 31 July, 19 August 2024

Date of orders:

12 September 2024

Decision date:

12 September 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

Proceedings 2023/426102

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order issued by the respondent to the applicant on 31 October 2023 under Schedule 5 of the Environmental Planning and Assessment Act 1979 (Act) is, pursuant to s 8.18(4)(c) of the Act, substituted with the Development Control Order at Annexure A.

Proceedings 2023/461450

The Court orders that:

(1) The appeal is upheld.

(2) The Court directs the respondent to issue, within 14 days of the making of this order, a Building Information Certificate for the property at 8 Kunipipi Street, St Clair NSW 2759 for the following works only:

a. inground swimming pool and swimming pool barrier; and

b. carport attached to the dwelling,

as highlighted in pink on the plan at Annexure B.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

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

Legislation Cited:

Civil Procedure Act 2005, s 26

Environmental Planning and Assessment Act 1979, Sch 5, Pt 1, ss 8.10, 8.11, 8.18, 8.25, 9.34

Land and Environment Court Act 1979, ss 17, 34

Penrith Local Environmental Plan 2010

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Texts Cited:

Australian Building Codes Board, Housing Provisions Standard 2022

National Construction Code, Building Code of Australia Volume Two 2022

Category:

Principal judgment

Parties:

Youssef Aoun (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
C Ters (Solicitor) (Applicant)
B Koyts (Solicitor) (Respondent)

Solicitors:
Ters Legal (Applicant)
Penrith City Council (Respondent)

File Number(s):

2023/426102
2023/461450

Publication restriction:

No

Judgment

COMMISSIONER:

1. This judgment deals with the following two appeals:

1. Proceedings 2023/426102 (DCO Proceedings) – an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order issued by the respondent on 31 October 2023 under s 9.34(1) and item 3 of Part 1 of Schedule 5 of the EPA Act (DCO), requiring the applicants in the DCO Proceedings to demolish the inground swimming pool and swimming pool barrier, carport attached to the dwelling, carport attached to the freestanding garage, awning attached the southern side of the dwelling, and front fence and roller door fronting Kunipipi Street on land identified as Lot 46 in Deposited Plan 261013, known as 8 Kunipipi Street, St Clair (Site).

2. Proceedings 2023/461450 (BIC Proceedings) – an appeal pursuant to s 8.25(1) of the EPA Act against the deemed refusal of Building Information Certificate (BIC) Application No BC23/0076 (BIC Application), being an application by the applicant in the BIC Proceedings to regularise unauthorised works including an awning, two carports, a swimming pool and associated landscaping works at the 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).

Background

3. The Site is zoned R2 Low Density Residential under the Penrith Local Environmental Plan 2010 (PLEP). The Site is owned by the applicant.

4. At the time the DCO was issued, the following works had been carried out at the Site (collectively, the Works):

1. construction of a swimming pool and swimming pool barrier;

2. construction of a carport attached to the existing dwelling;

3. construction of a carport attached to the existing freestanding garage;

4. erection of an awning to the southern side of the existing dwelling; and

5. erection of a front fence and roller door fronting Kunipipi Street.

5. It was the respondent’s contention that these Works:

1. were constructed without consent and were unlawful;

2. were not exempt development pursuant to the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008;

3. had an adverse amenity impact on the locality (in particular, the carport and fencing);

4. did not comply with the deemed-to-satisfy provisions of the National Construction Code Building Code of Australia 2022 Volume Two and Housing Provisions Standard, s 9.2.4, as the awning presented an unreasonable fire risk to adjoining properties; and

5. posed a concern due to insufficient information in respect of the swimming pool regarding site stability, earthworks, landfill requirements and surface water disposal.

6. On 20 July 2023, the respondent issued the applicant with a Notice of Intention to Serve Development Control Order (Notice).

7. Correspondence was provided by the applicant in relation to the Notice on 11 August and 13 October 2023.

8. The DCO was issued by the respondent on 31 October 2023 pursuant to s 9.34(1) and Part 1 of Schedule 5 of the EPA Act.

9. On 1 November 2023, the applicant lodged the BIC Application with the respondent.

10. On 24 November 2023, the applicant commenced the DCO Proceedings, being within the time period specified in s 8.18(3) of the EPA Act.

11. Separately, on 6 December 2023, the applicant lodged a development application (DA23/1056) seeking consent for, amongst other things, the prospective use of unauthorised structures at the Site (Development Application).

12. On 20 December 2023, the applicant commenced the BIC Proceedings against the deemed refusal of the BIC Application, being within the time period specified in s 8.25 of the EPA Act.

13. On 30 January 2024, the applicant commenced Class 1 proceedings against the deemed refusal of the Development Application (proceedings 2024/37264 (DA Proceedings)), being within the time period specified in ss 8.10 and 8.11 of the EPA Act.

14. On 31 January 2024, the Court ordered that the DCO Proceedings and BIC Proceedings be listed for conciliation under s 34 of the LEC Act on 3 July 2024. The DA Proceedings were listed for a mediation under s 26 of the Civil Procedure Act 2005 on 3 July 2024.

15. On 3 July 2024, the parties participated in a s 34 conference and mediation in respect of the three matters, which was adjourned on multiple occasions. I presided over the conciliation conferences and mediation.

16. During the course of the conciliation and mediation process, the applicant provided the following additional information to the respondent:

1. Amended plans prepared by DBG;

2. Amended landscape plans prepared by Outside in Design Group;

3. Landscape Design Compliance Certificate prepared by Outside in Design Group dated 16 July 2024;

4. Stage 1 – Site Contamination Assessment prepared by Paro Consulting dated 7 June 2024;

5. Bushfire Assessment Report prepared by Paro Consulting dated 18 June 2024; and

6. Statement of Environmental Effects prepared by Paro Consulting dated 19 June 2024.

17. Further, the applicant amended its Development Application as follows:

1. reduction in the roofing of the second carport;

2. replacement of the front boundary fence;

3. installation of a raised planter box in the north-western corner of the Site; and

4. increased landscaping across the Site,

(collectively, the Amended Development Application).

18. It is noted that the Amended Development Application did not propose any changes to the as built carport attached to the dwelling, swimming pool or swimming pool barrier. These structures remain as described in the BIC Application.

19. Following the provision of this further information, the parties reached agreement as to the resolution of all three proceedings.

20. The agreement reached is for:

1. the respondent to approve the Amended Development Application and the applicant discontinue the DA Proceedings;

2. a BIC to be issued in respect of the following works:

1. inground swimming pool and swimming pool barrier; and

2. carport attached to the dwelling.

3. the DCO to be substituted with a development control order (No 11 Compliance Order) requiring the applicant to install a temporary bollard in front of the existing eastern driveway and comply with the planning approval granted in respect of the Amended Development Application (Substituted Order).

21. The respondent has subsequently issued development consent to the Amended Development Application (Development Consent) and the DA Proceedings have been discontinued by the applicant. This judgment makes no orders or findings in relation to the DA Proceedings.

22. The parties provided signed s 34 agreements in the DCO Proceedings and BIC Proceedings on 19 August 2024 with accompanying jurisdictional statements.

DCO Proceedings

23. To make orders in accordance with the parties’ agreement in the DCO Proceedings, I must be satisfied that the decision to make orders substituting the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). 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.

24. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order; or

(b) modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

25. It is clear that the Court has power to substitute a development control order pursuant to s 8.18(4)(c) of the EPA Act.

26. I am satisfied the DCO should be substituted in the manner proposed by the parties on the basis that:

1. The Substituted Order is agreed by the parties to be issued pursuant to Item 11 of Pt 1 of Sch 5 of the EPA Act, being a “Compliance Order”. The applicant is the owner of the premises the subject of the Substituted Order such that the applicant is able to be issued with the Substituted Order pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act. I note that the applicant was also able to be issued with the original DCO on the basis that it was the “owner of the building” for the purposes of Order No 3.

2. The Substituted Order primarily requires the applicant to carry out the works the subject of the Development Consent, being a planning approval for the purposes of Item 11 of Pt 1 of Sch 5 of the EPA Act. The works the subject of the Substituted Order therefore require compliance with a planning approval and fall within the scope of Item 11 of Pt 1 of Sch 5 of the EPA Act and are in accordance with s 9.34 of the EPA Act. In respect of the requirement to erect a temporary bollard until the roller door is replaced with fencing, I am satisfied that this is a temporary measure to afford the applicant sufficient time to carry out the required fencing works and is appropriate to impose in the circumstances, having regard to s 8.18(4)(e) of the EPA Act.

3. The parties agree that the works the subject of the Substituted Order, in conjunction with the works to be authorised by the BIC and works to be carried out in accordance with the Development Consent, resolve the respondent’s concerns in relation to the unauthorised Works.

BIC Proceedings

27. To make orders in accordance with the parties’ agreement in the BIC Proceedings, I must be satisfied that the decision to make orders directing the respondent to issue a BIC in the terms proposed by the parties is a decision that the Court can make 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.

28. On hearing an appeal in connection with a BIC 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 –

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

2. revoke, alter or confirm a notice to supply information,

3. make any other order that it considers appropriate.

29. I am satisfied that the respondent should be directed to issue a BIC in the terms proposed by the parties on the basis that:

1. The applicant is the registered proprietor of the Site upon which the works the subject of the BIC Application were carried out and provided consent to the BIC Application when it was lodged with the respondent.

2. The works the subject of the BIC proposed to be issued comprise works to, or ancillary to, a dwelling house. Dwelling houses are permissible with consent in the R2 Low Density Zone under the PLEP, being the zone in which the Site is located.

3. The terms of the BIC proposed to be issued regularise the swimming pool, swimming pool barrier and carport attached to the dwelling, being the buildings or parts of buildings the subject of further information from the applicant, namely the:

1. BCA report prepared by J&T Consulting dated 31 August 2023;

2. Structural Adequacy Certificate prepared by HCT Engineering dated 16 October 2023; and

3. Certificate of Compliance – NSW Swimming Pool Register.

4. I accept the parties’ submission that there is no impediment to the Court directing the respondent to issue the BIC on the terms proposed having regard to the additional information provided by the applicant and the merits of this matter.

5. I am content that it is appropriate to direct the respondent to issue the BIC in respect of the swimming pool, swimming pool barrier fence and carport attached to the dwelling only, as the balance of the buildings that were initially sought to be regularised by the BIC Application are being addressed by their removal or modification pursuant to the Substituted DCO and Development Consent.

Conclusion

30. 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 DCO Proceedings and BIC Proceedings in accordance with the parties’ decision.

Orders

Proceedings 2023/426102

31. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order issued by the respondent to the applicant on 31 October 2023 under Schedule 5 of the Environmental Planning and Assessment Act 1979 (Act) is, pursuant to s 8.18(4)(c) of the Act, substituted with the Development Control Order at Annexure A.

Proceedings 2023/461450

32. The Court orders that:

1. The appeal is upheld.

2. The Court directs the respondent to issue, within 14 days of the making of this order, a Building Information Certificate for the property at 8 Kunipipi Street, St Clair NSW 2759 for the following works only:

1. inground swimming pool and swimming pool barrier; and

2. carport attached to the dwelling,

as highlighted in pink on the plan at Annexure B.

N Targett

Commissioner of the Court

426102.23 Annexure A

461450.23 Annexure B

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Decision last updated: 12 September 2024