Hermes Nominees Pty Ltd trading as Tarra Motors v Bega Valley Shire Council

[2023] NSWLEC 1465

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hermes Nominees Pty Ltd trading as Tarra Motors v Bega Valley Shire Council [2023] NSWLEC 1465

Hearing dates:

Conciliation conference 16 August 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely upon the supplementary and amended material identified in Annexure ‘A’.

(2) The appeal is upheld.

(3) The Occupation Certificate for application No. CFT-178016, for the occupation of part of the building located at Lot 1 DP 1077434 otherwise known as 1 Corkhill Place, Bega, NSW, comprising the automotive workshop for vehicle repairs is issued in accordance with Annexure ‘B’

Catchwords:

APPEAL – occupation certificate for vehicle repair station – occupation certificate for part of development – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.5, 6.10, 8.16

Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, Pt 5, Div 2, ss 41, 42

Land and Environment Court Act 1979, ss 34, 39

Texts Cited:

Australian Building Codes Board, Building Code of Australia

Category:

Principal judgment

Parties:

Hermes Nominees Pty Ltd trading as Tarra Motors (Applicant)
Bega Valley Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Kennedy & Cook (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2022/ 260314

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns the refusal, by the respondent, to issue an Occupation Certificate for that part of premises at 1 Corkhill Place, Bega, that is operated for the purposes of a vehicle repair station by the applicant. The application for the Occupation Certificate was lodged with the respondent on 20 July 2022. Following the expiry of the period after which the application is deemed to be refused, the applicant lodged an appeal, pursuant to s 8.16(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the respondent on the appeal, the Court has the power to determine whether to issue the Occupation Certificate pursuant to s 6.5(1)(c) of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 August 2023. I presided over the conciliation conference.

3. 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. The decision agreed upon is for the issue of the Occupation Certificate subject to conditions, pursuant to s 6.5(1)(c) of the EPA Act. The decision includes the grant of leave to rely on additional material. The signed agreement was filed on 16 August 2023, and is supported by an Agreed Statement of Jurisdictional Prerequisites (Agreed Statement) that sets out the jurisdictional prerequisites to the exercise of the power to approve an Occupation Certificate for part of the building. I have considered the contents of the Agreed Statement, together with the documents referred to therein and the documents in Annexure A to the orders.

4. As the presiding Commissioner, I am satisfied that the decision to issue the Occupation Certificate (for part of the building) subject to conditions is a decision 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 formed this state of satisfaction for the following reasons.

5. Firstly, the parties’ decision involves the Court exercising the function under s 6.5(1)(c) of the EPA Act, which is exercisable by the Court in accordance with s 39(2) of the LEC Act.

6. Secondly, the requirements of s 6.10 of the EPA Act do not preclude the issue of the occupation certificate, as each element that is required to be satisfied in subss (1) and (2) has been met insofar as they relate to an occupation certificate for that part of the premises that is used for the vehicle repair station. Based on the documents attached to the Statement of Facts and Contentions, the documents in Annexure A, and the joint reports filed in the proceedings on 28 July 2023 and 9 August 2023, the parties agree, and I accept that:

• Each of the preconditions in the development consent that are relevant to the issue of a certificate for occupation of part of the premises has been satisfied, in satisfaction of s 6.10(1) of the EPA Act.

• A development consent is in force with respect to the building, a construction certificate has been issued and the completed part of the building is suitable for occupation and use in accordance with its classification under the Building Code of Australia.

• The requirements of Pt 5 Div 2 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 have been complied with, including the requirement for a fire safety certificate in s 41, for the building to be safe for occupation and absent any hazards to health or safety in s 42(1) and for the design and construction to be consistent with the development consent in s 42(3).

7. I note that the conditions 49 to 56 of the development consent DA:2018.545 specify what is required prior to occupation or use. As agreed between the parties, only some of those are relevant preconditions to the issue of an occupation certificate for that part of the development that is the vehicle repair station. Those conditions include conditions 52-55, which have been satisfied, as set out in the Agreed Statement. The parties agree that the remaining conditions will need to be satisfied prior to the issue of a further occupation certificate for the whole development, which is required by condition 49 of DA:2018.545 to be obtained within 5 years from the issue of an occupation certificate for part of the development.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. 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 issues that were originally in dispute between the parties.

10. The Court orders that:

1. The Applicant is granted leave to rely upon the supplementary and amended material identified in Annexure ‘A’.

2. The appeal is upheld.

3. The Occupation Certificate for application No. CFT-178016, for the occupation of part of the building located at Lot 1 DP 1077434 otherwise known as 1 Corkhill Place, Bega, NSW, comprising the automotive workshop for vehicle repairs is issued in accordance with Annexure ‘B’

……………………….

J Gray

Commissioner of the Court

Annexure A (99328, pdf)

Annexure B (197749, pdf)

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Decision last updated: 18 August 2023