Ireland v Cessnock City Council - [1999] NSWLEC 153

Reported Decision: 103 LGERA 285

Land and Environment Court

of New South Wales

CITATION:

Ireland v. Cessnock City Council [1999] NSWLEC 153

PARTIES

APPLICANTS:
Ireland

RESPONDENT:
Cessnock City Council

NUMBER:

10170 of 1999

CORAM:

Bignold J

KEY ISSUES:

Practice & Procedure; Question of Law :- In earlier proceedings, Court granted mandatory injunction - effect on present proceedings? No Res Judicata.
Can a building certificate be issued where there is an existing demolition order in force?

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 149D, s 149E, s 149F

DATES OF HEARING:

06/17/1999

DATE OF JUDGMENT DELIVERY:

06/30/1999

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr G. Newport, Barrister
SOLICITORS:
Lorton Duke
RESPONDENT:
Mr J.B. Blackman, Barrister
SOLICITORS:
Cleaves Mallik & Gibbs

JUDGMENT:

TABLE OF CONTENTS

A. INTRODUCTION 1-3
B. THE RELEVANT FACTS 4-6
C. THE QUESTIONS OF LAW RAISED IN RESPECT OF THE BUILDING CERTIFICATE APPEAL 7.
D. THE STATUTORY PROVISIONS RELATING TO BUILDING CERTIFICATES 8-13
E. THE COMPETING ARGUMENTS ON THE BUILDING CERTIFICATE APPEAL 14-17
F. THE PRESENT PROCEEDINGS (BEING THE BUILDING CERTIFICATE APPEAL) ARE NOT BARRED 18-38
G. THE POWER TO ISSUE A BUILDING CERTIFICATE IN RESPECT
OF A BUILDING, THE SUBJECT OF A SUBSISTING DEMOLITION
ORDER 39-68
H. DETERMINATION OF THE QUESTIONS OFLAW IN THE BUILDING CERTIFICATE APPEAL 69.
QUESTIONS OF LAW RAISED IN THE DEVELOPMENT
APPEAL 70-104
J. CONCLUSIONS 105.

IN THE LAND AND Matters Nos. 10170 and 20033 of 1999

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 30 June 1999

P.C. AND P. IRELAND

Applicants

CESSNOCK CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION
1. In these two related proceedings (being respectively (i) an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) and (ii) an appeal pursuant to s 149F of that Act in respect of (i) the Council’s deemed refusal of a development application for the use of a building erected on lot 1 Deposited Plan 819282, comprising some 15 hectares situate at Pokolbin; and (ii) the Council’s refusal to issue a building certificate in respect of the same building) the Council has raised for determination by the Court a number of preliminary questions of law in both proceedings.

2. The parties jointly seek my determination of the questions of law and upon publication of my reasons for determination, ask me to adjourn the proceedings for future consideration of the merits of the respective appeals (in the event that the Court determines that the appeals are competent and are legally capable of yielding the relief claimed by the Applicants, being an outcome that the Council contends is not legally available).

3. By consent, the proceedings were heard together and the parties have asked the Court to first determine the questions of law raised by the Council in respect of the building certificate appeal (which was the principal focus of the hearing)and thereafter to determine the questions of law raised by the Council in respect of the development appeal.

B. THE RELEVANT FACTS

4. The facts relevant…

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: [1999] NSWLEC 153
Decision Date: 30 June 1999

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Bignold J considered two appeals brought by the Irelands against the Cessnock City Council. The first appeal was against the Council's refusal to issue a building certificate for a building on the Irelands' property. The second appeal was against the Council's refusal to grant development consent for the use of the same building. The Council argued that the Irelands' appeals were barred by the principles of res judicata and Anshun estoppel, and that there was no power to issue a building certificate where there was an existing demolition order in force. The court held that the Irelands' appeals were not barred by res judicata or Anshun estoppel, and that there was power or discretion to issue a building certificate even where there was an existing demolition order. The court also held that if a building certificate was issued, it would not render the construction of the building lawful, but would confer certain legal immunities on the building. The court further held that the Council could grant development consent for the use of the building, even though its erection had been declared unlawful, and that the possibility of another person seeking the demolition of the building did not preclude the granting of development consent.

Orders