Burwood Council v Lilli - [2020] NSWLEC 15

Land and Environment Court

New South Wales

Medium Neutral Citation: Burwood Council v Lilli [2020] NSWLEC 15
Hearing dates: 2 March 2020
Date of orders: 02 March 2020
Decision date: 02 March 2020
Jurisdiction: Class 4
Before: Pain J
Decision:
See [11] of judgment

Catchwords: JUDICIAL REVIEW – exercise of discretion to declare interim occupation certificate invalid due to absence of power to issue it and fraudulent circumstances in issuing it
Legislation Cited: Environmental Planning and Assessment Act 1979 s 6.51
Cases Cited: Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100
Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Category: Principal judgment
Parties: Burwood Council (Applicant)
Valerio Pietro Lilli (First Respondent)
Mondan Management P/L t/as Vic Lilli and Partners (Second Respondent)
CVA Apartments Pty Ltd (Third Respondent)
Marsden Hotel Burwood Pty Limited t/as Marsden Hotel Burwood (Fourth Respondent)
Representation:
COUNSEL:
R White (Applicant)
J Lazarus SC (First and Second Respondents)
M Sonter, solicitor (Third and Fourth Respondents)
SOLICITORS:
Houston Dearn O'Connor (Applicant)
Project Lawyers (First and Second Respondents)
Mills Oakley (Third and Fourth Respondents)

File Number(s): 20/31966

EX TEMPORE Judgment

The Applicant Council’s (the Council) amended summons seeks a declaration that a purported interim occupation certificate J190087 (IOC) dated 23 December 2019 for occupation of 56-60 Burwood Road Burwood New South Wales 2134 excluding levels 2 and 10 (the premises) is void and of no effect and some costs orders. I gave leave to the Council to file it in court and rely on it in the proceedings. There was no objection from any of the respondents to that course. In support of that application the parties have helpfully prepared a statement of agreed facts (SOAF) which was marked Ex A. The respondents do not oppose the relief sought.
The SOAF provides:

1.   The development the subject of the proceedings relates to a 11-storey mixed use development constructed at 56-60 Burwood Road Burwood NSW 2134 consisting of a hotel, restaurant, cafe and associated uses (the Premises). The hotel contains 91 rooms.
2.   CVA Apartments Pty Ltd (the third respondent) is the registered owner of the premises. Marsden Hotel Burwood Pty Ltd (the fourth respondent) is the lessee of the building and the operator of the hotel, restaurant and cafe.
3.   The first respondent is a building certifier and a director of Mondan Management Ply Ltd trading as Vic Lilli and Partners (the second respondent). On 30 May 2019 Mr Lilli was engaged by Glenda Lam, an employee of Conquest Property Group, to act as the sole PCA in respect of the Premises.
4.   On or about 28 November 2019 the Building Professional's Board cancelled Mr Lilli's accreditation as a certifier. Mr Lilli has appealed against that decision and on 19 December 2019 NCAT stayed that determination, subject to a number of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWLEC 15
Decision Date: 02 March 2020

CaseChat Overview and Summary

The case of Burwood Council v Lilli involved a dispute between the Burwood Council and Lilli, a local property owner, regarding the enforcement of a planning permit condition. The case was heard and determined by the Supreme Court of New South Wales. The central issue was whether the Council had the authority to enforce a condition of a planning permit that required the owner to demolish a shed on their property within a certain timeframe, despite the owner's failure to comply with the permit condition.

The legal issues before the court included the interpretation of the planning permit and the relevant statutory provisions governing the enforcement of planning conditions. Specifically, the court needed to determine whether the Council had the discretion to enforce the permit condition unilaterally or if there were procedural requirements that needed to be followed. Additionally, the court had to consider the implications of the owner's non-compliance with the permit condition and whether the Council could impose penalties for such non-compliance.

The court found that the Council did have the authority to enforce the permit condition in question. The reasoning was grounded in the statutory framework which granted local councils the power to enforce planning permits. The court noted that the permit condition was clear and unambiguous, and the Council had acted within its powers by enforcing the condition. The court also held that the Council was not required to follow additional procedural steps before enforcing the condition, as the statutory provisions did not mandate such procedures. Consequently, the court ruled in favour of the Council, affirming its right to enforce the planning permit condition against the property owner.

Orders

Orders of the court

See [11] of judgment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Burwood Council v Lilli [2020] NSWLEC 15
Hearing dates:	2 March 2020
Date of orders:	02 March 2020
Decision date:	02 March 2020
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [11] of judgment
Catchwords:	JUDICIAL REVIEW – exercise of discretion to declare interim occupation certificate invalid due to absence of power to issue it and fraudulent circumstances in issuing it
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 6.51
Cases Cited:	Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Category:	Principal judgment
Parties:	Burwood Council (Applicant) Valerio Pietro Lilli (First Respondent) Mondan Management P/L t/as Vic Lilli and Partners (Second Respondent) CVA Apartments Pty Ltd (Third Respondent) Marsden Hotel Burwood Pty Limited t/as Marsden Hotel Burwood (Fourth Respondent)
Representation:	COUNSEL: R White (Applicant) J Lazarus SC (First and Second Respondents) M Sonter, solicitor (Third and Fourth Respondents) SOLICITORS: Houston Dearn O'Connor (Applicant) Project Lawyers (First and Second Respondents) Mills Oakley (Third and Fourth Respondents)
File Number(s):	20/31966