Desa v Willoughby City Council

[2025] NSWLEC 1096

Land and Environment Court

New South Wales

Medium Neutral Citation:

Desa v Willoughby City Council [2025] NSWLEC 1096

Hearing dates:

Conciliation conference on 20 November 2024

Date of orders:

21 February 2025

Decision date:

21 February 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Upon the Respondent being satisfied that the following works (works) have been carried out:

(a) the reduction of the eastern boundary fence height by 300mm for a distance of 4.5m northwards from its southeastern boundary corner (Eastern Fence Reduction);

(b) the reduction of the southern boundary fence height by 300mm for a distance of 900mm westwards from its southeastern boundary corner (Southern Fence Reduction);

(c) the removal of decking along the Eastern Fence Reduction and Southern Fence Reduction zones for a distance of 900mm westwards and a distance of 4.5m northwards, from its south eastern boundary corner; and

(3) The Respondent is directed, within 14 days of the date of these orders, to issue a building information certificate for:

(a) the boundary fence; and

(b) the decking.

on the land at 67 Tindale Road, Artarmon, legally known as Lot 5 Section G in Deposited Plan 4154.

Catchwords:

DEVELOPMENT APPEAL – building information certificate – conciliation conference – agreement to rectification works – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.25, 8.25

Land and Environment Court Act 1979, ss 17, 34

Local Government Act 1993

Swimming Pools Act 1992, s 7

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Pts 2, 3

Swimming Pools Regulation 2018, cll 4, 5

Willoughby Local Environmental Plan 2012

Category:

Principal judgment

Parties:

Mark Desa (First Applicant)
Daisy Desa (Second Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
J Merlino (Solicitor) (Respondent)

Solicitors:
Litigant in person (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/282882

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicants against the Respondent's refusal of the Applicants' Building Information Certificate (No BIC/2023/57) (BIC Application) relating to 67 Tindale Road, Artarmon, legally known as Lot 5 Section G in Deposited Plan 4154 (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The BIC Application was lodged by the Applicants on 6 December 2023. It is sought in relation to fence and decking works undertaken without consent at the Site. The Respondent refused the BIC Application on 5 February 2024.

4. On 1 August 2024, the Applicants commenced these Class 1 proceedings under s 8.25(1) of the EPA Act in respect of the Respondent’s refusal of the BIC Application. The parties agree that the proceedings were commenced within the appeal period prescribed by s 8.25(2) of the EPA Act.

5. On hearing an appeal in connection with a building information certificate under s 8.25(1) of the EPA Act, pursuant to s 8.25(3), 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.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 20 November 2024. I presided over the conciliation conference.

7. Following the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the appeal to be upheld, the Applicant to carry out specified works, and upon finalising these works to the satisfaction of the Respondent, the Respondent be directed under s 8.25(3) of the EPA Act to issue a building information certificate in respect of the unauthorised works undertaken at the Site. Further, the parties agree that all contentions raised in the Statement of Facts and Contentions, and the Statement of Facts and Contentions in Reply have been resolved by the completion of the works by the Applicants agreed at the conciliation conference.

8. 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 this decision falls within the power of the Court as 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 subs (a)). Further;

1. The Applicants are the registered proprietors of the Site upon which the unauthorised works were constructed (and upon which the BIC Works are proposed to be carried out) and provided consent to the BIC Application when it was lodged with the Respondent.

2. In directing the Respondent to issue a building information certificate I have considered the matters listed at s 6.25 of the EPA Act. The parties agree, and I accept, that there are no matters discernible by the exercise of reasonable care and skill that would entitle the council, under the EPA Act or the Local Government Act 1993 (LG Act) to either order the building to be repaired, demolished, altered, added to or rebuilt or take proceedings for an injunction or order for demolition.

3. I accept the Respondent’s submission that the requirements for child-resistant barriers for outdoor swimming pools in s 7(1)(b) of the Swimming Pools Act 1992 (SP Act), and the relevant safety and building standards in cll 4 and 5(1) of the Swimming Pools Regulation 2018 (SP Regs) have been considered and addressed.

4. The parties agree, and I accept, that following the completion of the works required by the orders, the fence and decking will be satisfactory with reference to the standards under Pts 2 and 3 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

5. I accept the parties agreed submission that the unauthorised works do not breach any development standards in Willoughby Local Environmental Plan 2012 (LEP 2012).

9. Having reached the requisite state of satisfaction, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. 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 BIC.

10. Accordingly, the Court orders that:

1. The appeal is upheld.

2. Upon the Respondent being satisfied that the following works (works) have been carried out:

1. reduction of the eastern boundary fence height by 300mm for a distance of 4.5m northwards from its southeastern boundary corner (Eastern Fence Reduction);

2. the reduction of the southern boundary fence height by 300mm for a distance of 900mm westwards from its southeastern boundary corner (Southern Fence Reduction); and

3. the removal of decking along the Eastern Fence Reduction and Southern Fence Reduction zones for a distance of 900mm westwards and a distance of 4.5m northwards, from its southeastern boundary corner.

3. The Respondent is directed, within 14 days of the date of these orders, to issue a building information certificate for:

1. the boundary fence; and

2. the decking.

on the land at 67 Tindale Road, Artarmon, legally known as Lot 5 Section G in Deposited Plan 4154.

D Dickson

Commissioner of the Court

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Decision last updated: 21 February 2025