Garbourg v Ku-ring-gai Council

[2023] NSWLEC 1631

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Garbourg v Ku-ring-gai Council [2023] NSWLEC 1631

Hearing dates:

Conciliation Conference on 12 October 2023

Date of orders:

25 October 2023

Decision date:

25 October 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

In proceedings 2023/135865, the Court orders:

(1) The appeal is upheld.

(2) Development consent DA-139/20 granted by Ku-ring-gai Council on 22 October 2020, and as modified on 12 January 2021, is further modified in the terms in Annexure A.

(3) Development consent DA-139/20 as modified by the Court is Annexure B.

In proceedings 2023/227271, the Court orders:

(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 in relation to the works shown in blue on the plans prepared by PopovBass which form part of the Building Information Certificate Application No. eBCU0028/22 and are identified in Annexure C, with the exception of:

(a) The garage door shown on plan 0566-BIC03, revision 01 and 0566-BIC11, revision 01; and

(b) The internal door opening to the area labelled “home office” on plan 0566-BIC03, revision 01.

(3) The Building Information Certificate referred to in Order (2) directly above, shall be issued by the Respondent within 14 days of the date of these orders.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 6.25, 6.26, 8.9, 8.25

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, ss 34, 34AA

Cases Cited:

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:

The Australian Building Codes Board, National Construction Code Volume Two Amendment, 2019

Category:

Principal judgment

Parties:

Ran Garbourg (Applicant)
Ku-Ring-Gai Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/135865
2023/227271

Publication restriction:

No

Judgment

1. COMMISSIONER: The two proceedings before me here both relate to DA139/2020 which was a development application for a new dwelling house and associated development at 37 Ayres Road St Ives, legally identified as Lot 10 and 129 in DP 13482. Ku-Ring-Gai Council (Council) granted consent to DA139/2020 on 22 October 2020. Certain further modifications were approved on 12 January 2021. The two proceedings are each appeals under Class 1 of the Court’s jurisdiction and are outlined as follows:

• Proceedings 2023/135865 is an appeal against Council’s refusal of a modification application lodged by the applicant under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act), which would modify the consent for DA139/2020. Henceforth I will describe this as the MA appeal. The Council reference number for the MA appeal is MOD0169/22.

• Proceedings 2023/227271 is an appeal against the refusal by Council to issue a Building Information Certificate (BIC) over part of the building occupying the site. Henceforth I will describe this as the BIC appeal. The Council reference number for the BIC appeal is eBCU0028/22.

2. The MA appeal is brought under s 8.9 of the EPA Act. The BIC appeal is brought under s 8.25 of the EPA Act.

3. The two appeals were listed for conciliation (under s 34AA of the Land and Environment Court Act 1979 (LEC Act) with respect to the MA appeal and under s 34 of the LEC Act with respect to the BIC appeal), jointly, on 12 October 2023. I presided at the conciliation conference. During the course of that day the parties advised the Court of their agreement in principle on the terms of a decision in each of the proceedings. On 16 October 2023, the parties submitted signed agreements outlining these terms. The parties also provided jurisdictional notes in regard to each proceedings, indicating their agreed position on why the terms of the decisions were, in each case, decisions the Court could make in the proper exercise of its functions.

4. 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. Below, I consider each of the matters in turn and where relevant give consideration to any jurisdictional factors.

Modification application appeal

5. Essentially, as a consequence of the conciliated outcome between the parties, there have been certain amendments to MOD0169/22 which have been applied for by the applicant and have been agreed to by Council under s 113 of Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The amended application now seeks consent for the following:

• Removal of existing garage door and installation of new perforated garage door, 1355mm internal to the garage area.

• Void to southern most opening on the eastern elevation in line with new garage door.

• Installation of thin vertical bars to remainder of garage openings on eastern elevation.

• Remove door to undercroft on lower ground floor and infill.

• Internal reconfigurations and use of revised internal areas relating to extension to rumpus room, study nook in bedroom 4, new plant room in undercroft area and pantry adjacent to approved scullery.

• Use of semi enclosed garage manoeuvring area originally approved as a covered outdoor driveway.

• Use of internal spaces for a bedroom 5, bathroom, wet bar and laundry originally approved as an undercroft and plant room.

6. The amending plans and documents approved by Council under s 113 of the EPA Regulation are as follows:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Title Page	S45500	3	12 October 2023	Popov Bass
Site Plan	S45501	2	12 October 2023	Popov Bass
Ground Floor Plan	S45503	1	19 October 2022	Popov Bass
Lower Ground Floor Plan	S45504	6	12 October 2023	Popov Bass
Level 01 Plan	S45505	1	19 October 2022	Popov Bass
Roof Plan	S45506	1	19 October 2022	Popov Bass
South Elevation	S44507	2	12 October 2023	Popov Bass
North Elevation	S44508	1	19 October 2022	Popov Bass
West Elevation	S44509	1	19 October 2022	Popov Bass
East Elevation	S45510	6	12 October 2023	Popov Bass
Section AA	S45511	1	19 October 2022	Popov Bass
Section BB	S45512	3	12 October 2023	Popov Bass
Section CC	S45513	1	19 October 2022	Popov Bass
Schedule of Finishes	S45522	2	12 October 2023	Popov Bass
Typical Garage Opening Detail	S455	1	12 October 2023	Popov Bass
Reports
Basix Certificate prepared by Frys Energywise dated October 2023

7. As the, now amended, MOD0169/22 is the subject of Court proceedings, there is no requirement for lodgement on the NSW Planning Portal (s 113(6) EPA Regulation). The applicant filed the amended plans with the Court on 13 October 2023.

Jurisdictional considerations

8. In regard to jurisdiction and mindful of the parties' jurisdictional note, I find as follows with regard to amended MOD0169/22:

• Having regard to subs 4.55(2)(a) of the EPA Act, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. The consent, as modified, would continue to be for a dwelling house and associated development. That is, be of the same general description as that for which the consent was originally granted (for DA139/2020). Further, I note that the amendments to MOD0169/22 have satisfied Council’s concerns about merits considerations, and whether a threshold has been reached on that front. This convinces me that the modified development would be “essentially or materially” the same as the originally approved development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8).

• Having regard to subs 4.55(2)(b) of the EPA Act, I am satisfied with the advice of Council that there were no requirements for consultation with a Minister, public authority or approval body in relation to the proposal.

• Having regard to subss 4.55(2)(c) and (d) of the EPA Act, I am satisfied with the advice of Council that the modification application was notified in accordance with requirements and no submission were received.

• Having regard to subs 4.55(3) of the EPA Act, I accept the advice of the parties that there are no jurisdictional pre-conditions to the grant of development consent engaged in any of the environmental planning instruments that apply to the site or the Council's Development Control Plan. The parties advise that they have considered the clauses relevant to the application and consider that MOD0169/22, as amended, should be approved on merit.

• Further in regard to subs 4.55(3) of the EPA Act, the parties have provided me with information regarding the reasons given by the consent authority for the grant of the consent that is sought to be modified. Council’s bundle of documents filed on 10 October 2023 at Tab 8 includes the notice of determination for DA139/2020. I have considered the reasons given in this document.

9. In relation to modification application MOD0169/22, as amended, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions.

Building information certificate appeal

10. Section 6.25(1)(a) of the EPA Act provides that a BIC may only be issued if it appears that:

(a)  there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i)  to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii)  to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii)  to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b)  there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

11. The BIC application was accompanied by a series of documents referenced at Tab 3 of the Class 1 application filed on 17 July 2023. Relevantly, an assessment of the as-built works, the subject of the BIC, was undertaken against the deemed-to-satisfy provisions of Section 3 Acceptable Construction of the National Construction Code 2019. In addition, the parties advise that “certification” was provided by relevant experts as follows:

• Structural Engineering Certification issued Christian Zimmerman of Zimmerman Consulting Engineers dated 12 May 2022.

• Electrical Installation Certification issued by Kieran Chipman of Chip Electrics dated 12 May 2022.

• Mechanical Ventilation Certificate issued by Nicholas Sevag of Nu-Life Air conditioning Pty Ltd dated 12 May 2022.

• Parking/Turntable, Parking Certification by Christian Zimmerman of Zimmerman Consulting Engineers dated 12 May 2022.

• Plumbing and Draining certification issued by Ryan McNally of Rymac Plumbing Services dated 12 May 2022.

• Waterproofing certification issued by Graeme Alderidge of Aldex NSW Pty Ltd dated 10 May 2022.

• Survey Report by Adam Clarke Surveyors Pty Ltd dated 4 April 2022.

12. The parties’ jurisdictional note confirms that Council does not propose to make any order or take any proceedings of the type identified in s 6.25(1)(a) of the EPA Act in relation to the as built works as identified in the agreed orders. The parties advise that the BIC would apply to only part of the building, consistent with the power in s 6.26(1) of the EPA Act. By way of exclusion, the building information certificate would not apply to the garage door and an internal door opening to the area labelled “home office” in the relevant plans. This is made explicit in the terms of the proposed orders.

13. I accept the advice of the parties that the orders proposed in the s 34 agreement are within the Court's powers conferred on appeal pursuant to s 8.25(3) of the EPA Act and I accept the parties’ advice that the Court has power to direct the Council to issue the BIC in relation to part of the works, the subject of the application, pursuant to s 8.25(3)(a) of the EPA Act.

14. In relation to the BIC appeal, and building information certificate application eBCU0028/22, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions.

Conclusion

15. In accordance with the above findings, I have found that in relation to each of the proceedings before me, the terms of the decisions agreed to by the parties, are decisions that the Court could have made in the proper exercise of its functions. In turn, under s 34(3) of the LEC Act, I must dispose of each of the proceedings in accordance with the parties' decision in each instance.

16. In making the orders to give effect to these agreements between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

17. In proceedings 2023/135865, the Court orders:

1. The appeal is upheld.

2. Development consent DA-139/20 granted by Ku-ring-gai Council on 22 October 2020, and as modified on 12 January 2021, is further modified in the terms in Annexure A.

3. Development consent DA-139/20 as modified by the Court is Annexure B.

18. In proceedings 2023/227271, the Court orders:

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 in relation to the works shown in blue on the plans prepared by PopovBass which form part of the Building Information Certificate Application No. eBCU0028/22 and are identified in Annexure C, with the exception of:

1. The garage door shown on plan 0566-BIC03, revision 01 and 0566-BIC11, revision 01; and

2. The internal door opening to the area labelled "home office" on plan 0566-BIC03, revision 01.

3. The Building Information Certificate referred to in Order (2) directly above, shall be issued by the Respondent within 14 days of the date of these orders.

P Walsh

Commissioner of the Court

Annexure A

Annexure B

Annexure C

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Amendments

21 November 2023 - Correction to Condition 1 of Annexures A and B.

Decision last updated: 21 November 2023