Back Up the Truck Property Pty Ltd v Hawkesbury City Council

[2023] NSWLEC 1615

Land and Environment Court

New South Wales

Medium Neutral Citation:

Back Up the Truck Property Pty Ltd v Hawkesbury City Council [2023] NSWLEC 1615

Hearing dates:

Conciliation Conference 4 July, 15 and 29 August 2023

Date of orders:

18 October 2023

Decision date:

18 October 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the respondent is ordered to issue a building information certificate with respect to the unauthorised paved courtyard extension within the carpark at 90 March Street, Richmond (Lot 1 in Deposited Plan 85005 and Lot 2 in Deposited Plan 854124), being the works the subject of building information certificate application BC/0018/22, within 7 days of these orders being made by the Court.

Catchwords:

APPEAL – building information certificate –conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 6.23, 8.25,

Hawkesbury Local Environmental Plan 2012

Land and Environment Court Act 1979, ss 17, 34

Cases Cited:

Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240

Category:

Principal judgment

Parties:

Back Up the Truck Property Pty Ltd (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Thomson Geer (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

23/31156

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 refusal of the applicant’s building information certificate application (No. BC/0018/22) (BIC Application) which sought to regularise unauthorised works to the Richmond Inn (Hotel) located at Lot 1 in Deposited Plan 85005 and Lot 2 in Deposited Plan 854124, known as 90 March Street, Richmond (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 16 November 2021 pursuant to s 6.23 of the EPA Act in relation to the following works undertaken at the Site:

1. construction of a paved outdoor courtyard extension; and

2. alterations to the Hotel’s carparks.

4. The BIC Application was refused by the respondent on 17 November 2022 in accordance with s 6.23 of the EPA Act.

5. On 30 January 2023, 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.

6. The proceedings were commenced within the appeal period prescribed by s 8.25(2) of the EPA Act.

7. 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:

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.

8. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 4 July, 15 and 29 August 2023. I presided over the conciliation conference.

9. During the conciliation process, 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, and the respondent be directed under s 8.25(3) of the EPA Act to issue a building information certificate in respect of the works the subject of the BIC Application.

10. 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.

11. 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 the subject of the BIC Application and provided consent to the BIC Application when it was lodged with the respondent.

2. The Site is zoned E2 Commercial Centre pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP). “Pubs” are permissible with consent in the E2 zone.

3. I accept the parties’ position that the “paving” works the subject of the BIC Application comprise a “building” as defined in s 1.4 of the EPA Act. The paving in this case can be distinguished from the decision in Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 where it was found that a “roadway which follows the natural lie of the land” was not a “building” for the purposes of the EPA Act. In this case, the “paving”:

1. is built up and raised approximately 15cm from the adjacent road;

2. is connected to the Hotel building; and

3. incorporates a balustrade along the perimeter.

12. 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.

13. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the respondent is ordered to issue a building information certificate with respect to the unauthorised paved courtyard extension within the carpark at 90 March Street, Richmond (Lot 1 in Deposited Plan 85005 and Lot 2 in Deposited Plan 854124), being the works the subject of building information certificate application BC/0018/22, within 7 days of these orders being made by the Court.

N Targett

Acting Commissioner of the Court

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Decision last updated: 18 October 2023