Bright Beginnings Learning Centre Middleton Grange Pty Ltd v Liverpool City Council

[2024] NSWLEC 1649

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bright Beginnings Learning Centre Middleton Grange Pty Ltd v Liverpool City Council [2024] NSWLEC 1649

Hearing dates:

Conciliation Conferences 13 May, 8 and 23 July, 13 and 14 August, 9 and 17 September, and 3 October 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is directed to carry out the following works within 14 days of the Court Orders:

(a) Construct the access ramp set out in the plan at Annexure A; and

(b) Plant 6 x Philotheca myoporoides 'Winter Rouge' (Longleaf Waxflower) 150mm pot size, 6 x Dianella caerulea 'Breeze' (Flax Lily) 150mm pot size and 6 x Pennisetum alopecuroides 'Purple Lea' (Native Foxtails) 150mm pot size in the area adjoining the access ramp as set out in the plan at Annexure A (the Works).

(3) The Applicant is to, upon completion of the Works, submit to the Respondent certification prepared by an appropriate qualified access expert that the constructed access ramp:

(a) Is in accordance with the Plan at Annexure A; and

(b) Complies with relevant deemed to satisfy requirements of the Building Code of Australia.

(4) The Respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, to issue a Building Information Certificate with respect to the completed childcare centre, basement and playground depicted in the plans at Annexure B at 91 Southern Cross Avenue, Middleton Grange, being land legally identified as Lot 400 in DP1049478 within 7 days of receiving the certification referred to in paragraph (3).

Catchwords:

APPEAL – Building Information Certificate – action required before Building Information Certificate can be issued – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.22, 6.23, 6.26, 8.25

Land and Environment Court Act 1979, ss 17, 34

Liverpool Local Environmental Plan 2008, cll 2.2, 2.3

Category:

Principal judgment

Parties:

Bright Beginnings Learning Centre Middleton Grange Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
J Garcia (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2024/75610

Publication restriction:

Nil

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 to issue a Building Information Certificate (Council reference BC-75/2023) (the BIC) pursuant to an application (the BIC Application) made on 31 May 2023 relating to land identified as Lot 400 DP 1049478 and also known as 91 Southern Cross Avenue (previously 17 Southern Cross Avenue), Middleton Grange NSW 2171 (the site).

2. The BIC Application sought to regularise unauthorised works being the complete childcare building, basement, playground and landscaping (the works). In detail the works included:

1. a multi storey childcare centre with basement car parking;

2. outdoor playground; and

3. landscaping.

Background

3. The site is zoned R1 – General Residential under cl 2.2 of the Liverpool Local Environmental Plan 2008 (the LEP). The use is permissible with consent pursuant to cl 2.3 of the LEP.

4. Development Consent DA-981/2015 dated 23 March 2016 was issued by the Respondent for demolition and construction of a two-storey childcare centre with two levels of basement parking.

5. Construction certificate CCB-415/2017 dated 4 March 2017 was issued by the Respondent for Stage One including demolition, excavation, basement slabs and formwork up to ground floor only.

6. On 31 May 2023, the Applicant lodged the BIC Application with the Respondent for unauthorised works being the complete childcare building, basement, playground and landscaping.

7. On 12 February 2024, the Respondent refused the BIC Application.

The Appeal

8. On 27 February 2024, 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.

9. 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).

10. 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 –

(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.

11. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was followed by numerous adjournments to allow time for the parties to resolve the outstanding issues. I presided over the conciliation conference.

12. The parties have 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.

13. The parties advise that the Applicant is to be directed to carry out specified works (the construction of a compliant access ramp to the child care centre’s building and to undertake planting on the site). Upon finalising these works to the satisfaction of the Respondent, the Respondent is to be directed under s 8.25(3)(a) of the EPA Act to issue a building information certificate.

14. 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.

15. 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. Owner’s consent was provided for the Building Information Certificate application as required by s 6.22(a) of the EPA Act.

2. The application for the Building Information Certificate was lodged with Liverpool City Council being the Council for the area in which the land to which the application relates is situated as required by s 6.23(1) of the EPA Act.

3. The parties advise that the proposed development has a valid development consent (DA-981/2015). The parties agree that development application DA-980/2015 for the “demolition of existing buildings and construction and operation or a child care centre” was physically commenced pursuant to s 95(4) of the EPA Act (as it applied at the relevant time), and has not lapsed.

4. The parties further advise that the legal basis which permits the Applicant to construct the alternative ramp and to plant the additional vegetation is found at s 8.25(3)(a) and s 6.26(7) of the EPA Act and that the Applicant does not require further development consent or a modification of the earlier consent to undertake this work as it will be a direction from the Court.

16. 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.

Orders

17. The Court orders that:

1. The appeal is upheld.

2. The Applicant is directed to carry out the following works within 14 days of the Court Orders:

1. Construct the access ramp set out in the plan at Annexure A; and

2. Plant 6 x Philotheca myoporoides 'Winter Rouge' (Longleaf Waxflower) 150mm pot size, 6 x Dianella caerulea 'Breeze' (Flax Lily) 150mm pot size and 6 x Pennisetum alopecuroides 'Purple Lea' (Native Foxtails) 150mm pot size in the area adjoining the access ramp as set out in the plan at Annexure A (the Works).

3. The Applicant is to, upon completion of the Works, submit to the Respondent certification prepared by an appropriate qualified access expert that the constructed access ramp:

1. Is in accordance with the Plan at Annexure A; and

2. Complies with relevant deemed to satisfy requirements of the Building Code of Australia.

4. The Respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, to issue a Building Information Certificate with respect to the completed childcare centre, basement and playground depicted in the plans at Annexure B at 91 Southern Cross Avenue, Middleton Grange, being land legally identified as Lot 400 in DP1049478 within 7 days of receiving the certification referred to in paragraph (3).

G Kullen

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 17 October 2024