Bannigan v Ku-ring-gai Council (No 2)

[2022] NSWLEC 1435

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bannigan v Ku-ring-gai Council (No 2) [2022] NSWLEC 1435

Hearing dates:

Conciliation conference 8 June 2022, 5 August 2022

Date of orders:

18 August 2022

Decision date:

18 August 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Court directs the Respondent to issue a building information certificate the subject of the Building Information Certificate Number eBCU0080/21, in respect of works carried out on land described as Lot B in Deposited Plan 337614 known as 6A Water Street, Wahroonga NSW 2076.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.25
Land and Environment Court Act 1979, s34

Category:

Principal judgment

Parties:

Steven Bannigan (Applicant)
Ku ring gai Municipal Council (Respondent)

Representation:

Solicitors:
H Kahagalle, Addisons (Applicant)
C Rose, Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/69553

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Mr Bannigan has appealed against Ku ring gai Council’s decision to refuse to issue a Building Information Certificate, number eBCU0080/21, in respect of unauthorised works carried out on land known as 6A Water St Wahroonga (Lot B in Deposited Plan 337614).

2. The appeal is made pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 which allows an appeal to the Court by an Applicant who is dissatisfied with either a refusal of, or a failure to issue, a Building Information Certificate (BIC). The appeal was filed with the Court 10 March 2022, within six 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) on 8 June and 5 August 2022. I presided over both conciliation conferences. 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. Prior to reaching the agreement the Applicant has prepared and filed with the Court and the Respondent various certifications and stormwater engineering plans which have satisfied the Respondent that it is now appropriate for the BIC to be issued.

4. 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 BIC in such terms and on such conditions as the Court thinks fit. Section 8.25(3) provides:

(3) On hearing the appeal, 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.

5. 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. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the grant of a BIC.

6. Accordingly, the Court orders that:

1. The appeal is upheld

2. Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Court directs the Respondent to issue a building information certificate the subject of the Building Information Certificate Number eBCU0080/21, in respect of works carried out on land described as Lot B in Deposited Plan 337614 known as 6A Water Street, Wahroonga NSW 2076.

.…………………………

D M Dickson

Commissioner of the Court