Hodzic v Inner West Council - [2023] NSWLEC 1659

Land and Environment Court

New South Wales

Medium Neutral Citation: Hodzic v Inner West Council [2023] NSWLEC 1659
Hearing dates: 22 and 23 June 2023
Date of orders: 07 November 2023
Decision date: 07 November 2023
Jurisdiction: Class 1
Before: Espinosa C
Decision:
In Proceedings 22/264511:
The Court orders:
(1) The appeal is dismissed.
(2) All exhibits are retained.
In Proceedings 22/266881:
The Court orders:
(1) The appeal is upheld.
(2) Development application DA 2021/0716 for the use of 6 existing but unapproved skylights numbered and referred to as skylights 5, 6, 7, 8, 9 and 10 (the Skylights) is determined by a grant of consent subject to conditions of consent at Annexure A.
(3) All exhibits are retained.

Catchwords:
DEVELOPMENT APPEAL – residential development – use of unapproved skylights – heritage – character – orders
BUILDING INFORAMTION CERTIFICATE APEAL – unauthorised works – notional assessment – skylights – heritage – orders

Legislation Cited:
Ashfield Local Environmental Plan 2013, cl 5.10,
Civil Procedure Act 2005, s 26
Environmental Planning and Assessment Act 1979, ss 4.15, 6.25, 8.2, 8.7, 8.25, Div 6.7, Pt 6
Inner West Local Environment Plan 2022, Sch 5
Land and Environment Court Act 1979, s 39

Cases Cited:
Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250
Lee v Randwick City Council [2021] NSWLEC 1200
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
Australian Buildings Codes Board, National Construction Code, February 2019
Comprehensive Inner West Development Control Plan 2016

Category: Principal judgment
Parties: Sam Hodzic (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
M Seymour SC (Applicant)
T To (Respondent)
Solicitors:
Mosman LNS Legal Service (Applicant)
Inner West Council (Respondent)

File Number(s): 22/264511
22/266881
Publication restriction: No

Judgment

COMMISSIONER: This judgment relates to two appeals heard together following the Court’s order on 17 February 2023, that Proceedings No. 22/266881 be heard in conjunction with Proceedings No. 2022/264511 on 22 and 23 June 2023.
The first appeal is a Class 1 Building Information Certificate Appeal pursuant to s 8.25 of the EPA Act being an appeal against the refusal of Building Information Certificate Application No. BC/2022/0087 lodged with the Respondent on 22 July 2022 seeking the issue of a Building Information Certificate pursuant to Div 6.7 of Pt 6 of the EPA Act. Proceedings No. 22/264511 (the BIC Appeal)
The Building Information Certificate Application Form (BIC Application) lodged with the Respondent seeks a Building Information Certificate (BIC) pursuant to s 6.25 of the EPA Act for part of the building. The BIC Appeal Class 1 Application form, filed 5 September 2022 (Ex D), seeks that the following order be made in these proceedings:

“1. The appeal be upheld.
2. Building Information Certificate application dated 22 July 2022 in respect of 6 unapproved skylights at 28 Empire St Haberfield NSW 2045 be approved.
3. Costs of the proceedings for the applicant.”

The Respondent has not determined the BIC Application.
The second appeal is a Class 1 Development Appeal pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWLEC 1659
Decision Date: 07 November 2023

CaseChat Overview and Summary

The appeal was heard by the Land and Environment Court of New South Wales. The respondents, Inner West Council, had refused the appellant's development application for the use of six existing but unapproved skylights. The appellant challenged the decision of the Council, leading to an appeal. The Court was required to determine whether the refusal of the development application was unreasonable and whether the appeal should be dismissed or upheld.

The Court examined the evidence and submissions presented by both parties. The appellant argued that the use of the existing skylights did not constitute a change of use and did not require separate approval. The Council, on the other hand, contended that the use of the skylights required separate consent as it constituted a change of use. The Court found that the use of the existing skylights did not constitute a change of use and did not require separate approval. The Court also found that the appellant had established that the use of the skylights was not contrary to the development control provisions of the relevant planning instrument. The Court held that the refusal of the development application was unreasonable.

The Court dismissed the appeal in relation to the refusal of the development application for the use of four existing but unapproved skylights. The Court upheld the appeal in relation to the refusal of the development application for the use of six existing but unapproved skylights. The Court granted the development application subject to conditions of consent. The Court ordered that all exhibits be retained.

Orders

Orders of the court

In Proceedings 22/264511:

The Court orders:

(1) The appeal is dismissed.

(2) All exhibits are retained.

In Proceedings 22/266881:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA 2021/0716 for the use of 6 existing but unapproved skylights numbered and referred to as skylights 5, 6, 7, 8, 9 and 10 (the Skylights) is determined by a grant of consent subject to conditions of consent at Annexure A.

(3) All exhibits are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hodzic v Inner West Council [2023] NSWLEC 1659
Hearing dates:	22 and 23 June 2023
Date of orders:	07 November 2023
Decision date:	07 November 2023
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	In Proceedings 22/264511: The Court orders: (1) The appeal is dismissed. (2) All exhibits are retained. In Proceedings 22/266881: The Court orders: (1) The appeal is upheld. (2) Development application DA 2021/0716 for the use of 6 existing but unapproved skylights numbered and referred to as skylights 5, 6, 7, 8, 9 and 10 (the Skylights) is determined by a grant of consent subject to conditions of consent at Annexure A. (3) All exhibits are retained.
Catchwords:	DEVELOPMENT APPEAL – residential development – use of unapproved skylights – heritage – character – orders BUILDING INFORAMTION CERTIFICATE APEAL – unauthorised works – notional assessment – skylights – heritage – orders
Legislation Cited:	Ashfield Local Environmental Plan 2013, cl 5.10, Civil Procedure Act 2005, s 26 Environmental Planning and Assessment Act 1979, ss 4.15, 6.25, 8.2, 8.7, 8.25, Div 6.7, Pt 6 Inner West Local Environment Plan 2022, Sch 5 Land and Environment Court Act 1979, s 39
Cases Cited:	Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 Lee v Randwick City Council [2021] NSWLEC 1200 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	Australian Buildings Codes Board, National Construction Code, February 2019 Comprehensive Inner West Development Control Plan 2016
Category:	Principal judgment
Parties:	Sam Hodzic (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Seymour SC (Applicant) T To (Respondent) Solicitors: Mosman LNS Legal Service (Applicant) Inner West Council (Respondent)
File Number(s):	22/264511 22/266881
Publication restriction:	No