Hou v Hornsby Shire Council

[2025] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hou v Hornsby Shire Council [2025] NSWLEC 1106

Hearing dates:

Conciliation Conference held 11 February 2025

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

In relation to the DCO Appeal, proceedings number 2024/293239, the Court orders:

(1)   The appeal is upheld.

(2) That pursuant to s 8.18(4) of the EPA Act, the Development Control Order issued by the Respondent to the Applicant on 11 July 2024 is modified as set out in Annexure A.

In relation to the BIC Appeal, proceedings number 2024/292416, the Court orders:

(1)   The appeal is upheld.

(2)   The applicant is directed to carry out the works within the time frames described in the Modified Development Control Order No 5 at Annexure A.

(3) The respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979 to issue a Building Information Certificate with respect to the retaining wall identified as Attachment A to the Modified Development Control Order within 7 days of receiving the certification required in Order 6 of the Modified Development Control Order.

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – substitution of order from demolish to repair unauthorised retaining wall – conciliation conference – agreement between the parties – orders

BUILDING INFORMATION CERTIFICATE APPEAL – direction to owner to undertake works as per development control order prior to issue of certificate – conciliation conference – direction to council to issue building information certificate after completion of repair to retaining wall – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.1, 6.22, 6.23, 6.26, 8.18, 8.25, 9.34, 9.35, 9.36Sch 5, Pt 1, cl 22

Land and Environment Court Act 1979, ss 34, 39

Cases Cited:

Agg Group Pty Ltd v City of Ryde Council [2021] NSWLEC 1465

Texts Cited:

Australian Uniform Building Regulations Co-ordinating Council, Building Code of Australia, 1988

Australian Building Codes Board, National Construction Code, 2022

Category:

Principal judgment

Parties:

Zhen Qi Hou (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
A Hannam (Applicant)
B Lennox (Solicitor) (Respondent)

Solicitors:
Alton Legal (Applicant)
Storey and Gough Lawyers (Respondent)

File Number(s):

2024/293239
2024/292416

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Control Order Appeal (DCO Appeal) proceedings number 2024/293239, and a Building Information Certificate Appeal (BIC Appeal) proceedings number 2024/292416, pursuant to ss 8.18 and 8.25 respectively, of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The DCO Appeal is an appeal against the issue of a development control order dated 11 July 2024 (the Order) prepared in the terms of Order No 3 – Demolish Works Order and Order No 10 – Restore Works Order, in the table to Pt 1 of Sch 5 of the EPA Act relating to an unauthorised concrete block retaining wall, unauthorised concrete slabs and associated fill and unauthorised alterations to the dwelling located adjacent to the southern and south-western side of the premises at 35 Barkala Place, Westleigh legally described as Lot 33 in DP 250207 (the Site).

3. The BIC Appeal is an appeal against the refusal on 6 June 2024 of a Building Information Certificate Application BC/14/2023 (the BIC Application) in relation to the concrete block retaining wall (Retaining Wall) located adjacent to the south-western side of the dwelling on the Site.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 11 February 2025. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and in relation to the DCO Appeal, modifying the order, and in relation to the BIC Appeal, directing the Respondent to issue a building information certificate.

6. 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. 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.

7. The parties’ decision involves the Court exercising the function under s 8.18(4) of the EPA Act to modify the DCO and under s 8.25(3) of the EPA Act to direct the Respondent to issue a BIC.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of ss 8.18 and 8.25 of the EPA Act to modify the DCO by way of substituting another order that the Respondent could have given and to direct a council to issue a BIC. The parties explained how the jurisdictional prerequisites have been satisfied.

9. The DCO Appeal was filed on 9 August 2024, being within 28 days of the DCO, satisfying the requirements of s 8.18(3) of the EPA Act.

10. The DCO was issued pursuant to ss 9.34, 9.35, 9.36 and Sch 5 of the EPA Act. Clause 22(1) of Pt 10 in Sch 5 provides that “a relevant enforcement authority that gives a development control order may, at any time, modify the order”. On appeal, in relation to the issue of a DCO, the terms of s 8.18 of the EPA Act provides as follows:

8.18   Appeals concerning orders (cf previous s 121ZK)

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(4)  On hearing an appeal, the Court may—

(a)  revoke the development control order, or

(b)  modify the development control order, or

(c)  substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d)  find that the development control order is sufficiently complied with, or

(e)  make such order with respect to compliance with the development control order as the Court thinks fit, or

(f)  make such other order with respect to the development control order as the Court thinks fit.

11. The parties seek that the Court exercise its function on appeal pursuant to s 8.18(4)(c) of the EPA Act, to substitute for the development control orders 3 and 10 another order that the relevant enforcement authority who gave the order could have given, namely order 5.

12. On appeal of the refusal to issue a BIC, the terms of s 8.25 of the EPA Act provide as follows:

8.25   Appeals with respect to building information certificates (cf previous s 149F)

(1)  An applicant—

(a)  who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b)  who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c)  who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2)  The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

(3)  On hearing the appeal, the Court may do any one or more of the following—

(a)  direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b)  revoke, alter or confirm a notice to supply information,

(c)  make any other order that it considers appropriate.

13. On 19 March 2018 the Respondent granted development consent DA/1346/2017 for the construction of a dwelling house on the Site and was modified on 4 August 2021 (Development Consent). The Development Consent did not authorise the construction of the Retaining Wall and Rock Wall.

14. The Retaining Wall is a building as defined in s 1.4(1) of the EPA Act and is not development that is exempt development or that could otherwise be carried out without development consent under s 4.1 of the EPA Act.

15. The Applicant is the owner of the Site and pursuant to s 6.22(a) of the EPA Act was able to apply for a BIC in relation to the Retaining Wall to the Respondent pursuant to s 6.23(1) of the EPA Act.

16. In December 2024, the applicant’s consultant engineers met with the respondent’s expert engineer and a joint report was prepared, following which, the parties reached an agreement as to the terms of the modified DCO and agree that all contentions in the Statement of Facts and Contentions filed by the Respondent on 3 September 2024 are resolved. A copy of the joint report was provided to the Court which provides that “the current documentation depicting the retaining wall and slab construction … is not sufficiently detailed” and that:

“[I]f the method of pinning the retaining wall slabs back to the rock face cannot reliably be established or proven to be adequate, then a structural design will need to be proposed as to how to retrofit an anchor system that can be certified. This anchor system will aim to pin the retaining wall back to the original vertical rock face in order to prevent potential lateral movement of the retaining wall.”

17. The parties seek to substitute for the DCO another order that the Respondent could have given, namely to substitute Orders 3 (Demolish Works Order) and 10 (Restore Works Order) with an Order 5 (Repair Order).

18. The parties agree that the Retaining Wall was constructed without design or oversight by an appropriately qualified structural engineer and that no critical state inspections or evidence is available which indicates it was built in accordance with the relevant Australian Standards and Building Code of Australia (now the National Construction Code). Given its size and location above the adjoining Crown Reserve and residential properties, the parties agree that the Retaining Wall was a real risk of being a danger to members of the public and those surrounding residential properties.

19. I am satisfied that circumstances exist where the building is or is likely to become a danger to the public or is so dilapidated that it is prejudicial to the occupants, persons or property in the neighbourhood. These circumstances are consistent with the provisions for when an Order 5 can be issued: Column 2 of Pt 1 of Sch 5 of the EPA Act.

20. The Substituted Order will be issued to the owner of the Site, being a person identified in Column 3 of Pt 1 of Sch 5 of the EPA Act to whom a Repair Order can be issued.

21. In relation to the BIC appeal, the parties seek a direction to do works in accordance with the modified DCO together with a direction to the Respondent to issue the BIC following compliance with the DCO.

22. The Court has the power to make such orders because:

1. Pursuant to s 8.25(3)(a) of the EPA Act the Court may direct the Respondent to issue a BIC in such terms and on such conditions as the Court thinks fit: Agg Group Pty Ltd v City of Ryde Council [2021] NSWLEC 1465 at [5] and [6];

2. The Court, exercising the functions of the Respondent pursuant to s 39(2) of the LEC Act, may exercise the power under s 6.26(7) of the EPA Act and direct the Applicant to undertake work before the issuance of a BIC.

23. For the reasons set out in this judgment, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

24. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

25. In relation to the DCO Appeal, proceedings number 2024/293239, the Court orders:

1. The appeal is upheld.

2. That pursuant to s 8.18(4) of the EPA Act, the Development Control Order issued by the Respondent to the Applicant on 11 July 2024 is modified as set out in Annexure A.

26. In relation to the BIC Appeal, proceedings number 2024/292416, the Court orders:

1. The appeal is upheld.

2. The applicant is directed to carry out the works within the time frames described in the Modified Development Control Order No 5 at Annexure A.

3. The respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979 to issue a Building Information Certificate with respect to the retaining wall identified as Attachment A to the Modified Development Control Order within 7 days of receiving the certification required in Order 6 of the Modified Development Control Order.

E Espinosa

Commissioner of the Court

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Annexure A

Decision last updated: 25 February 2025