Cramp v Mid-Coast Council (No. 2)

[2022] NSWLEC 1096

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cramp v Mid-Coast Council (No. 2) [2022] NSWLEC 1096

Hearing dates:

Conciliation conference on 8 November, 2021, 7 and 17 February 2022

Date of orders:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

1. The appeal is upheld.

2. The Development Control Order – Stop Work Order – Order No. 2 pursuant to Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW), given to the Applicant by the Respondent on 5 August 2021 Reference no. EN2021/0557 in relation to 19 Illusions Court Tallwoods Village NSW 2430 being the whole of the land in Lot 817 in Deposited Plan 1033851, is revoked.

Catchwords:

DEVELOPMENT CONTROL ORDER – STOP WORK ORDER – development application – building information certificate – surrender of CDC – agreement between the parties – order

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.63, 8.18

Environmental Planning and Assessment Regulation cl 97(3)

Land and Environment Court Act 1979 ss 17(d), 34, 39

Category:

Principal judgment

Parties:

David Cramp (First Applicant)
Debra Cramp (Second Applicant)

Mid-Coast Council (Respondent)

Representation:

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

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

File Number(s):

2021/251055

Publication restriction:

No

Judgment

1. COMMISSIONER: This is Judgment No. 2 in relation to 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 authorised by CDC/0148962-A.

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 8.18(4) of the EPA Act and ss 34(3) and 39(2) of the LEC Act.

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

2. On 14 December 2021 (Judgment No. 1) I made the following Directions and Notations:

“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:

(a)   Peg out survey;

(b)   Prefabricated roof truss and wall frame details;

(c)   Wet area/flashing certificate;

(d)   Glazing certificate

(e)   Structural certification for piering;

(f)   Notice of inspection’s report;

(g)   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.”

3. On 17 February 2022 the Applicant filed the following documents:

1. Notice of Determination of Development Application DA2021/2366 in relation to development for the use of dwelling, shed bushfire upgrading works to dwelling and installation of a new pool for the Property known as 19 Illusions Court, Tallwoods Village NSW 2430 having a legal description of Lot 817 in DP 1033851 dated 22 January 2022 being an approval subject to the attached conditions of consent. Development consent to DA2021/2366 was granted by the Respondent.

2. Ms A Kliese, Shaw Reynolds Lawyers letter to A Panuccio, General Manager, Mid-Coast Council dated 31 January 2022, surrendering development consent CDC/0148962 dated 30 November 2020 as modified by CDC/0148962-A dated 21 June 2021, 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); and attaching Annexure A: Owners’ Consent by David Cramp and Debra Cramp dated 22 January 2022.

3. Mr B Ferguson, Compliance Officer and Authorised Delegate of Mid-Coast Council letter to Mr David Cramp and Mrs Debra Cramp dated 1 February 2022 acknowledging the Notice of Voluntary Surrender referred to in para [3(2)] above, and further stating:

“Pursuant to clause 97(4) of the EPA Regulation, the Council notified David Cramp and Debra Cramp that, considering the agreement referred to in the Land and Environment Court judgment in Cramp v Mid-Coast Council [2021] NSWLEC 1753 and Notice of Determination of development consent reference DA2021/2366 dated 20 January 2022, issued by Council to Mr and Mrs Cramp:

(i)   The Council is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and

(ii)   that the surrender will not have an adverse impact on any third party or the locality.

“On receipt of this notice, the Notice of Voluntary Surrender takes effect to surrender the CDC.”

4. Mr James Muller, Team Member – Building Services, Mid-Coast Council letter to D L Cramp dated 16 February 2022 enclosing Building Information Certificate No. HBC2021/1039 in relation to 19 Illusions Court Tallwoods Village NSW 2430 for Lot 817 DP 1033851, the owners being D L Cramp and D A Cramp, the Building Information Certificate applying to the Building as set out in the Schedule annexed thereto.

4. By the filing of the documents set out in para [3] above, the Applicants have complied with the Directions and Notations made in Judgment No. 1. I will now revoke the Development Control Order – Stop Work Order issued by Council under s 9.34 and Part 1 (Item 2) of Schedule 5 of the EPA Act in relation to works allegedly authorised by CDC/014962-A on the Site.

Schedule 5 Development control orders

Part 1 General orders

No	Column 1	Column 2	Column 3
To do what?	When?	By 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	•  Owner of the land •  Any person apparently engaged in the work

5. Section 8.18 of the EPA Act provides:

8.18   Appeals concerning orders

(cf previous s 121ZK)

(4)  On hearing an appeal, the Court may—

(a)  revoke the development control order, or

………………………………….

6. In accordance with the s 34(3) Agreement pursuant to the LEC Act filed on 23 November 2021, and pursuant to s 39(2) of the LEC Act, and with 8.18(4) of the EPA Act, I shall revoke Development Control Order – Order 2 Stop Work Order, the subject of this appeal.

7. The Court Orders:

1. The appeal is upheld.

2. The Development Control Order – Stop Work Order – Order No. 2 pursuant to Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW), given to the Applicant by the Respondent on 5 August 2021 Reference no. EN2021/0557 in relation to 19 Illusions Court Tallwoods Village NSW 2430 being the whole of the land in Lot 817 in Deposited Plan 1033851, is revoked.

……………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 25 February 2022