Chan v The Council of the City of Sydney

[2023] NSWLEC 1548

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chan v The Council of the City of Sydney [2023] NSWLEC 1548

Hearing dates:

Conciliation conference on 21 July, 14 September 2023

Date of orders:

21 September 2023

Decision date:

21 September 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue to the Applicant a Building Information Certificate for application no. BC/2023/34 dated 3 March 2023 within 28 days of the receipt of appropriate building work plans from the Applicant documenting the as-built building work the subject of BC/2023/34.

(3) In the event that the Respondent has not issued a building information certificate within 21 days of satisfaction of (2), the Applicant has liberty to apply to the Court by way of Notice of Motion to restore the matter to the list.

Catchwords:

APPEAL – building information certificate – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.25

Land and Environment Court Act 1979, s 34

Cases Cited:

Phillips v Walsh (1990) 20 NSWLR 206

Category:

Principal judgment

Parties:

Annie Chan (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
G Hayek (Solicitor) (Applicant)
A Stipcevic (Solicitor) (Respondent)

Solicitors:
Harrington Lawyers (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2023/00140617

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal by the applicant against the refusal of the respondent to issue a building information certificate for the installation of a sliding window and stackable glass bifold panels at 101/2 Shirley Street, Alexandria. The appeal is lodged pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act), 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. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached following a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 July 2023 and adjourned to 14 September 2023. I presided over the conciliation conference.

3. 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. The parties agreed that, prior to the issue of a building information certificate, the applicant should carry out works required by a modified development control order (HBC/2022/154), and the conciliation was adjourned to 14 September 2023 for that to occur. Those works have now been carried out and the parties have agreed that building work plans should be provided to the respondent. The decision agreed upon under s 34(3) of the LEC Act is that the Council is directed to issue a building information certificate at a time that follows the provision of those plans. The agreement was filed on 14 September 2023.

4. 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 as these decisions fall within the power of the Court set out in s 8.25(3) of the EPA Act to “direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit” (at (a)). 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. The parties’ agreement also includes an order granting liberty to apply. I consider that the grant of liberty to apply is appropriate in circumstances where compliance with the direction to issue the building information certificate could be delayed for reasons out of the control of either party. As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, “In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order.”

6. Having reached the state of satisfaction that the decision agreed upon is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. 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 building information certificate.

Final orders

8. The Court notes that the Applicant undertakes to provide to the Respondent appropriate building work plans documenting the as-built building work the subject of BC/2023/34 by 5 October 2023.

9. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue to the Applicant a Building Information Certificate for application no. BC/2023/34 dated 3 March 2023 within 28 days of the receipt of appropriate building work plans from the Applicant documenting the as-built building work the subject of BC/2023/34.

3. In the event that the Respondent has not issued a building information certificate within 21 days of satisfaction of (2), the Applicant has liberty to apply to the Court by way of Notice of Motion to restore the matter to the list.

……………………….

J Gray

Commissioner of the Court

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Decision last updated: 21 September 2023