Galea Group Pty Ltd v Penrith City Council

[2023] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation:

Galea Group Pty Ltd v Penrith City Council [2023] NSWLEC 1357

Hearing dates:

Conciliation conference on 3 February 2023, 14 April 2023, 28 April 2023, 17 May 2023, 2 June 2023 and 20 June 2023.

Date of orders:

11 July 2023

Decision date:

11 July 2023

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the respondent is directed to issue a Building Information Certificate with respect to application No. BC22/0063 for the “shed” building and the “concrete hardstand” depicted in the plans at Annexure A.

Catchwords:

BUILDING INFORMATION CERTIFICATE – appeal against refusal - rural shed – concrete hardstand – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.22, 6.23, 8.25

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cl 1.2

Category:

Principal judgment

Parties:

Galea Group Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/344710

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Galea Group Pty Ltd (the Applicant) has appealed against the Penrith City Council’s (Council) decision to refuse its application for the Building Information Certificate BC22/0063 (the application) in respect of unauthorised building works at 430 The Driftway, Londonderry NSW being the whole of the land in Lot 2 in Deposited Plan 1156996 (the site).

2. The appeal is made pursuant to s 8.25(1)(a) and (2) of the Environment Planning and Assessment Act 1979 (EPA Act) and was filed with the Court on 16 November 2022, within 6 months of the Council’s decision to refuse the application which occurred on 21 October 2022.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 3 February 2023, 14 April 2023, 28 April 2023, 17 May 2023, 2 June 2023 and 20 June 2023. I presided over the conciliation conference.

4. 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. Pursuant to s 8.25(3) of the EPA Act, the agreement requires the Council to issue a Building Information Certificate with respect to the application for the “shed” building and “concrete hardstand” as depicted in the plans at Annexure A.

5. Owner’s consent was provided for the application as required by s 6.22(a) of the EPA Act.

6. The application was lodged with Council, being the Council for the area in which the land to which the application relates is situated, as required by s 6.23(1) of the EPA Act.

7. The site is zoned RU4 Primary Production Small Lots under the Penrith Local Environmental Plan 2010 (PLEP 2010). The parties agreed that the shed and concrete hardstand complies with the objectives of the RU4 Primary Production and Small Lots zone in cl 1.2 of PLEP 2010 in that it maintains the rural landscape character of the land.

8. The site is generally rectangular in shape and presents as a battle axe lot type with an access handle fronting The Driftway. It has a frontage of approximately 95m when measured along the rear boundary of the adjacent property to the north, behind the access handle. The site is approximately 187.4m in depth when measured behind the access handle.

9. The site is currently occupied by a two-storey dwelling, in-ground swimming pool and shed. The site is identified as being flood prone land.

10. The surrounding area contains rural residential development, largely consisting of detached single dwellings and associated sheds/outbuildings.

11. As required by s 34(3) of the LEC Act, I am satisfied that the proposed orders are a decision that the Court can make in the proper exercise of its functions. Section 8.25(3)(a) of the EPA Act gives the Court the power, on the hearing of the appeal, to direct the Council to issue a building information certificate in such terms and on such conditions as the Court thinks fit.

12. 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. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the respondent is directed to issue a Building Information Certificate with respect to application No. BC22/0063 for the “shed” building and the “concrete hardstand” depicted in the plans at Annexure A.

M Peatman

Acting Commissioner of the Court

344710.22 Annexure A 

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Decision last updated: 11 July 2023