Cramp v Mid-Coast Council

[2021] NSWLEC 1753

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cramp v Mid-Coast Council [2021] NSWLEC 1753

Hearing dates:

Conciliation conference on 8 November 2021

Date of orders:

14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See directions at [17] below

Catchwords:

STOP WORK ORDER – CDC – APZ – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.63, 8.18, 18, 18.4, Pt 1 of Sch 5

Environmental Planning and Assessment Regulation 2000, cl 97

Greater Taree Local Environmental Plan 2010

Land and Environment Court Act 1979, ss 17, 34, 39

State Environmental Planning Policy (Exempt & Complying Development) 2008, cl 1.19A

Texts Cited:

Planning for Bushfire Protection 2019 by the NSW Rural Fire Service

Category:

Principal judgment

Parties:

David and Debra Cramp (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
A Kliese (Solicitor) (Applicant)
H Irish (Respondent)

Solicitors:
Shaw Reynolds (Applicant)
Local Government Legal (Respondent)

File Number(s):

2021/251055

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal by the Applicants against Mid-Coast Council’s (Council) Development Control Order (DCO) being a Stop Work Order – Order No. 2 issued by Council on 5 August 2021, pursuant to Pt 1 of Sch 5 of the Environmental Planning & Assessment Act 1979 (the EPA Act). The DCO required the Applicants to stop carrying out all building works associated with the modified CDC issued on 21 June 2021, by Daniel Chapman on behalf of BuildCert Certification Pty Ltd.

1. The appeal has been brought by the Applicants pursuant to s 8.18(1) of the EPA Act.

2. The appeal falls within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act)

3. The statutory function to be exercised in determining the proceedings is s 18(4) of the EPA Act and s 39(2) of the LEC Act.

Background

2. The land is described as Lot 817 in Deposited Plan 1033851 and is known as 19 Illusions Court, Tallwoods Village (the Site).

3. The Site is zoned R1 (General Residential) under the Greater Taree Local Environmental Plan 2010 (GTLEP 2010). Dwelling houses are permitted with consent.

4. The site is recorded on Council’s Bushfire Prone Land Map as “Vegetation Buffer”, and adjoins Lot 1 in Deposited Plan 1273130 (being part of the Tallwoods Golf and Country Club), part of which to the south of the Site is known as the ‘Grangewood Bushland Reserve’.

5. On 30 November 2020, a Complying Development Certificate (Application No. CDC/0148962) for the construction of a dwelling, swimming pool and garage/shed at the Site, was issued by Accredited Certifier Daniel Chapman (No. BDC2288) (the Certifier) on behalf of BuildCert Certification Pty Ltd pursuant to the provision of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) (CDC). The CDC was supported by a Bushfire Attack Level (BAL) Certificate dated 21 August 2020, referencing Report dated 21 August 2020, for “Proposed dwelling” on the Site (the First BAL Certificate) issued by Sarah Jones of Firebird Ecosultants Pty Ltd, which assessed the BAL rating of the proposed dwelling as BAL-29 on the basis that an APZ of 24 metres could be (or had been) created and managed in perpetuity to the south and east of the Site. The First BAL Certificate incorporated a Figure 1.1 Asset Protection Zone which showed a 24m APZ exceeding the area of the Site and extending south onto adjoining land known as the ‘Grangewood Bushland Reserve’ and east to part of the Tallwoods Golf and Country Club. The purported APZ was located on adjoining land not owned by the Applicants.

6. On 3 June 2021 Council issued a Stop Work Order to the Applicants.

7. On 21 June 2021, a modified Complying Development Certificate No. CDC/01482-A (the modified CDC) was issued. The modified CDC explained the reason for the modification was the BAL Certificate dated 28 May 2021 referencing Report dated 28 May 2021, for ‘Proposed dwelling’ on the Site (the Second BAL Certificate).

8. On 21 June 2021, the Council revoked the Stop Work Order dated 3 June 2021.

9. The Second BAL Certificate relied upon an APZ of 24m to the south of the Site being created pursuant to the development consent No. 627/2003D which granted consent for the clearing of an APZ and construction of fire trails over land described as Lot 1000 in Deposited Plan 1046172 (which was subdivided to create Lot 1 DP 1273139 and includes the Grangewood Bushland Reserve), subject to conditions. Condition 1 of DA No. 627/2003D required the construction and maintenance of a 40m APZ as shown on Figure 2 of the Bushfire Management Plan prepared by Terra Consulting (Aust) Pty Ltd, dated February 2003. The Second BAL Certificate referred to “Attachment 3 – Approved and Implemented APZ” and included an APZ along the southern boundary of the Site, to a width of approximately 24m. However, subsequent investigation by Council officers determined that the approved Bushfire Management Plan incorporated into the conditions of consent for No. DA0627/2003D proposed the establishment of six (6) metre wide fire trails to the south of properties in Illusions Court (including the subject Site). Council officers then formed the view that, without the benefit of an APZ to a width of 24m, the Site would likely have a BAL of BAL-40 or BAL-Flame Zone.

10. The modified CDC was issued pursuant to the Codes SEPP. However, cl 1.19A of the Codes SEPP provides that complying development may not be carried out on Bushfire Prone Land if the development would be carried out on land in BAL -40 or BAL-Flame Zone. Council determined that the Second BAL Certificate had not been issued in accordance with the methodology specified in Planning for Bushfire Protection 2019 as required by cl 1.19A(3)(a) of the Codes SEPP.

11. On 5 August 2021, Council issued the owners of the Site with a Stop Work Order which is the subject of this Appeal.

Legislation

Environmental Planning and Assessment Act 1979

Division 9.3 Development Control Order

Schedule 5 Development control orders – Part 1 – General Orders

Column 1	Column 2	Column 3
To do what?	When?	To whom?
2	Stop Work Order: To stop building work or subdivision work carried out in contravention of this Act	Building work or subdivision work is carried out in contravention of this Act, or in a manner that would affect the support of adjoining premises	Owner of the land. Any persons apparently engaged in the work

12. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 8 November 2021. I presided over the conciliation conference.

13. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the appeal being upheld subject to the following steps being taken by the parties:

1. The Applicants are to lodge a development application (DA) with Council in relation to the Site and to appoint the Council as the principal certifying authority on or around 26 November 2021. The DA is to be accompanied by a statement of environmental effects, a bush fire assessment report, and a schedule of upgrade works proposed to be carried out to the existing works on the Site.

2. The Applicants are to apply for a Building Information Certificate (BIC) on or around 29 November 2021. The BIC application is to contain a description of the building or part of the building being certified by reference to works-as-executed plans of existing works at the Site. The BIC is to be accompanied by the following information and certifications:

1. Peg out survey;

2. Prefabricated roof truss and wall frame details;

3. Wet area/flashing certificate;

4. Glazing certificate

5. Structural certification for piering;

6. Notice of inspection’s report;

7. Engineer’s slab certification.

3. Upon receipt of the DA documentation and the BIC documentation by the Council, the DA documentation will be referred to the NSW Rural Fire Service promptly by the Council with a request that the NSW Rural Fire Service assess the DA urgently.

4. The Council is to determine the DA and BIC under delegated authority, noting that no notification of either application is necessary.

5. The Applicant consents to a DA condition of consent which will be imposed by Council that CDC 0148962 dated 30 November 2020 as modified by CDC/0148962-A dated 21 June 2021 (the CDC) be voluntarily surrendered in accordance with s 4.63 of the EPA Act and cl 97(3) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000).

6. The Stop Work Order issued by the Council dated 5 August 2021 be revoked upon satisfaction of:

1. The determination of the DA by the granting of consent to the application; and

2. The determination of the BIC application by the issue of a BIC; and

3. The Council’s notification, in accordance with cl 97(4) of the EPA Regulation 2000 that the CDC has been surrendered.

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. The parties’ decision involves the Court exercising the function under s 18.4(f) of the EPA Act and s 39(2) of the LEC Act revoking the Stop Work Order subject to the parties complying with par [13] above. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The Applicants are the owners of the Site, and the relevant person to whom the Stop Work Order is given in accordance with s 8.18(1) of the EPA Act.

2. The Applicants’ appeal to the Court was made within the time provisions of 28 days in accordance with s 8.18(3).

3. Pursuant to s 8.18(4) of the EPA Act and s 39(2) of the LEC Act, the Court has power to amend or revoke the DCO. Pursuant to s 8.18(f), the Court can order that the revocation of the DCO can only occur after specific conditions are to be met within a specified time.

15. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The specific conditions proposed by the parties ensure that the dwelling is built in accordance with the provisions of the EPA Act by requiring a development application to be lodged for the new works, and a building information certificate to be determined for the existing works, together with the surrender of the existing CDC applicable to the Site. Further, the NSW RFS will be assessing the bushfire risk in accordance with the provisions of Planning for Bushfire Protection 2019. Once these steps are taken, and the Council has issued consent to the DA and issued the BIC, then the Stop Work Order can be revoked

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.

17. The Court directs:

1. The Applicants are to lodge a development application with the Respondent in relation to the Site and to appoint the Respondent as the principal certifying authority on or around 26 November 2021 or as soon as possible thereafter. The development application is to be accompanied by a statement of environmental effects, a bush fire assessment report, and a schedule of upgrade works proposed to be carried out to the existing works on the land known as 19 Illusions Court Tallwoods Village, NSW.

2. The Applicants are to apply for a Building Information Certificate on or around 29 November 2021, or as soon as possible thereafter. The building information certificate application is to contain a description of the building or part of the building being certified by reference to works-as-executed plans of existing works at 19 Illusions Court Tallwoods Village. The building information certificate application is to be accompanied by the following information and certifications:

1. Peg out survey;

2. Prefabricated roof truss and wall frame details;

3. Wet area/flashing certificate;

4. Glazing certificate

5. Structural certification for piering;

6. Notice of inspection’s report;

7. Engineer’s slab certification.

18. I note:

1. The Respondent has agreed that upon receipt of the development application and the building information certificate application by the Respondent, the development application is to be referred to the NSW Rural Fire Service promptly with a request that the NSW Rural Fire Service assess the development application urgently.

2. The Respondent has agreed to determine the development application and building information certificate application under delegated authority with no notification being necessary.

3. In determining the development application the Respondent intends to impose a condition of consent that CDC/0148962 dated 30 November 2020 as modified by CDC/0148962-A dated 21 June 2021 be voluntarily surrendered in accordance with s 4.63 of the Environmental Planning and Assessment Act 1979 and cl 97(3) of the Environmental Planning and Assessment Regulation 2000 within 28 days.

19. Upon either the Applicant or Respondent filing evidence of the Respondent granting development consent and issuing the building information certificate and evidence of surrender of CDC/0148962 dated 20 November 2020 as modified by CDC/0148962-A dated 21 June 2021 being effected in accordance with this judgment, final orders will be made to revoke the Stop Work Order – Order No. 2 issued by the Respondent on 5 August 2021.

……………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 14 December 2021