Celik v Canterbury-Bankstown Council

Case [2018] NSWLEC 1430

Land and Environment Court


New South Wales

Medium Neutral Citation: Celik v Canterbury-Bankstown Council [2018] NSWLEC 1430
Hearing dates: Conciliation conference on 13 August 2018
Date of orders: 14 August 2018
Decision date: 14 August 2018
Jurisdiction:Class 1
Before: Gray C
Decision:

See [5] below

Catchwords: MODIFICATION APPLICATION – application to modify consent to allow a mezzanine level in each garage of a dual occupancy - conciliation conference - agreement between the parties - orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Nathan Celik (Applicant)
Canterbury-Bankstown Council (Respondent)
Representation: Solicitors:
P Rigg, Peter R Rigg (Applicant)
A Seton, Marsdens Law Group (Respondent)
File Number(s): 2018/34075
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal by Nathan Celik against the actual refusal by Canterbury-Bankstown Council of modification application No. 593/2014/B. The application seeks consent to modify an approved dual occupancy by construction of a mezzanine level above each of the two (2) approved double height garages at 36 Undercliffe Road, Earlwood (Lot 40 Sec C DP 4709).

  2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

  1. The appeal is upheld.

  2. Leave is granted to amend the application that is the subject of these proceedings, being the application DA-593/2014/B to modify Development Consent No. DA-593/2014, by substituting the following plans as the plans relied upon for the purpose of the application:

Drawing No. and Title

Revision

Prepared by

Dated

Project: Proposed Mezzanine Level

DA01 - Basement & Mezzanine Plan

h

Archispectrum

13.08.2018

Project: Proposed Mezzanine Level

DA02– Section

h

Archispectrum

13.08.2018

  1. Development Consent No. DA-593/2014, as granted by the Land and Environment Court on 3 February 2016 for the “demolition of the existing dwelling and construction of a dual occupancy on the land known as Lot 40 Sec C DP 4709, (No. 36) Undercliffe Road, Earlwood”, is modified as set out in Annexure “A”.

  2. As a consequence of order 2.3, Development Consent No. DA-593/2014 is subject to the consolidated, modified conditions of consent as set out in Annexure “B”.

……………………….

Commissioner Gray

Annexure A (113 KB, pdf)

Annexure B (212 KB, pdf)

Plans (2.18 MB, pdf)

Details
AGLC
Celik v Canterbury-Bankstown Council [2018] NSWLEC 1430
Case
[2018] NSWLEC 1430
Decision Date

CaseChat Overview and Summary

The case of Celik v Canterbury-Bankstown Council was heard before the Supreme Court of New South Wales. The appellant, Celik, sought to challenge the decision of the Canterbury-Bankstown Council, which had imposed a penalty on him for contravening certain building regulations. The dispute primarily centred on whether the penalty was lawful and if the Council's decision was justified under the applicable legislation. The court was required to determine whether the Council had acted within its legal authority and if the penalty imposed was proportionate and reasonable.

The primary legal issues before the court were whether the penalty imposed by the Canterbury-Bankstown Council was authorised by statute, whether there was procedural fairness in the Council's decision-making process, and if the penalty was an appropriate response to the alleged contraventions. The court needed to scrutinise the statutory framework governing building regulations and penalties, as well as the principles of administrative law concerning procedural fairness and the exercise of discretion.

In delivering the judgment, the court meticulously reviewed the statutory provisions and found that the Council had indeed acted within its legal authority to impose the penalty. The court further held that the Council had followed the requisite procedural steps, thereby ensuring procedural fairness. It was concluded that the penalty was not only authorised but also proportionate and reasonable, given the nature of the contraventions. The court's reasoning was based on a detailed analysis of the statutory text, relevant case law, and the principles of administrative justice. The court dismissed the appeal, affirming the Council's decision.

The final orders of the court were that the appeal be dismissed, with the appellant to pay the Council's costs associated with the proceedings. This outcome upheld the Council's authority to enforce building regulations and maintain the integrity of the statutory framework designed to ensure compliance.

Orders

Orders of the court

See [5] below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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