Habibeh v Blacktown City Council

[2022] NSWLEC 1651

Land and Environment Court

New South Wales

Medium Neutral Citation:

Habibeh v Blacktown City Council [2022] NSWLEC 1651

Hearing dates:

Conciliation conference on 5 October 2022

Date of orders:

24 November 2022

Decision date:

24 November 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue to the Applicants a Building Information Certificate for application no. BC-22-00021 dated 19 April 2022 within 14 days of the satisfaction of the following terms and conditions:

(a) Revocation of demolition order dated 22 April 2022 issued by the Respondent to the Applicants; and

(b) Compliance with Development Control Order issued by the Respondent to the Applicants dated 27 October 2022.

(3) In the event that the Council has not issued a Building Information Certificate within 21 days of satisfaction of both (2)(a) and (2)(b), the Applicants have liberty to apply to the Court by way of notice of motion to restore the matter to the list.

Catchwords:

APPEAL – development works order – Building Information Certificate – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, Div 9.3, s 8.25, Pt 1 Sch 5

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

Carlos Habibeh and Rita Habibeh (Applicants)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Simington (Solicitor)(Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Lindsay Taylor Lawyer (Respondent)

File Number(s):

2022/180207

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against Blacktown City Council’s (Council) refusal of Building Information Certification application BC-22-00021 (BIC Application) dated 19 April 2022.

2. The original BIC Application related to a covered entertaining area, under construction, with an approximate floor area of 80m². The structure is erected at 36 Barossa Drive, Minchinbury NSW 2770, formally known as Lot 6 in DP 877890 and is set back approximately 175mm-285mm from the western and southern boundary of the site.

3. Prior to rejecting the BIC application, the Council issued a Demolish Works Order (DWO), pursuant to Division 9.3 of the EPA Act and Item 3, Part 1 of Schedule 5 of the EPA Act, ordering the demolition and removal of the structure.

4. The Court arranged a conciliation conference between the parties, under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which commenced on 5 October 2022. I have presided over the conciliation conference process.

5. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This agreement involved the Court upholding the appeal, revoking the original DWO dated 22 April 2022, and requiring the applicant to comply with a new Development Control Order (DCO) issued by the Respondent on 27 October 2022. The Respondent is then required to issue a BIC when the agreed works have been completed.

6. To make orders in accordance with the agreement, I must be satisfied that the decision to make the orders, in the agreed terms, is a decision that the Court could make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). If I am so satisfied, I must dispose of the proceedings in accordance with the parties agreement.

7. The parties gave due consideration to the relevant legislative requirements for development of this nature. This included having regard to relevant fire rating requirements and the aesthetics of the proposal.

8. As the presiding Commissioner, I am satisfied that the decision to make the requested orders is a decision that the Court can make in the proper exercise of its functions. I note that s 8.25(3) of the EPA Act gives the Court the power, on the hearing of the appeal, to make any orders that the Court considers appropriate, including a direction to issue a BIC.

9. In making the orders to give effect to the agreement between the Parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

10. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue to the Applicants a Building Information Certificate for application no. BC-22-00021 dated 19 April 2022 within 14 days of the satisfaction of the following terms and conditions:

1. Revocation of demolition order dated 22 April 2022 issued by the Respondent to the Applicants; and

2. Compliance with Development Control Order issued by the Respondent to the Applicants dated 27 October 2022.

3. In the event that the Council has not issued a building information certificate within 21 days of satisfaction of both (2)(a) and (2)(b), the Applicants have liberty to apply to the Court by way of Notice of Motion to restore the matter to the list.

Stuart Harding

Acting Commissioner of the Court

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