Ayoubi v Fairfield City Council (No 2)

[2020] NSWLEC 1616

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ayoubi v Fairfield City Council (No 2) [2020] NSWLEC 1616

Hearing dates:

6 February 2018; 19 October 2018; Mention on 10 April 2019; 16 November 2020

Date of orders:

8 December 2020

Decision date:

08 December 2020

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) The Respondent is directed to issue a Building Information Certificate pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979 in respect of the works sought in Building Certificate Application No. BCC6.1/2017.

Catchwords:

BUILDING INFORMATION CERTIFICATE – application for building information certificate – actions required before building information certificate could be issued – consent orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Karen Ayoubi v Fairfield City Council [2018] NSWLEC 1046

Category:

Principal judgment

Parties:

Karen Ayoubi (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
P Zipkis (Solicitor) (Applicant)
J Ritchie (Solicitor) (Respondent)

Solicitors:
Watson Stafford Zipkis (Applicant)
Ritchie & Castellan (Respondent)

File Number(s):

2017/108711

Publication restriction:

No

Judgment

1. COMMISSIONER: The background of this matter is laid out in the judgment in Karen Ayoubi v Fairfield City Council [2018] NSWLEC 1046 (the 2018 judgment).

2. The applicant, Ms Karen Ayoubi, had appealed the refusal by the respondent, Fairfield City Council, of her application for the issuing of a Building Certificate for structures on Lot 83 in DP 11658, also known as 52 Riverview Road, Fairfield.

3. The application had been made prior to the current form of the Environmental Planning and Assessment Act 1979 coming into effect. The applicant sought an order that the Council be directed to issue a Building Certificate (now a Building Information Certificate) pursuant to s 149F(3) (now s 8.25(3)) of the Environmental Planning and Assessment Act 1979.

4. In the 2018 judgment (at [23]), the Court made orders, by consent, for the carrying out of work, or the provision of certificates, which would allow Council to issue a Building Certificate. Subsequently on 19 October 2018, the Court granted consent to vary the orders, by changing the due dates by which certain events were to occur.

5. The completion of the works, and issuing of certificates, required by the 2018 orders did not proceed according to the specified timetable. A number of events occurred beyond the control of either party. In addition to Class 1 proceedings there was also in play a Class 4 action brought by the Council. The Class 1 matter and the Class 4 matter were case managed as a pair, by the Court which received frequent updates on the practical difficulties which had arisen. The Class 4 proceedings were discontinued on 20 November 2020.

6. At a mention of the Class 1 matter, by telephone, on 16 November 2020, I was advised by the parties that the orders from 2018 had been complied with to Council’s satisfaction. An inspection on 12 November 2020 had occurred. The works specified had been completed and the required certificates had been provided to Council. I directed that the parties confer to agree on the wording of a Draft Building Information Certificate, and the form of the Order sought.

7. These documents have now been provided.

8. The Court notes that the respondent is satisfied that all work referred to in the Amended Consent Orders made on 19 October 2018 has been completed to its satisfaction.

9. The Court orders that:

1. The appeal is upheld.

2. The Respondent is directed to issue a Building Information Certificate pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979 in respect of the works sought in Building Certificate Application No. BCC6.1/2017.

……………………….

P Adam

Acting Commissioner of the Court

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