Jakovljevic v The Hills Shire Council

[2022] NSWLEC 1698

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jakovljevic v The Hills Shire Council [2022] NSWLEC 1698

Hearing dates:

Conciliation conference on 15 November 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 the Respondent is ordered to issue a Building Information Certificate with respect to the unauthorised works comprising the staircase, mezzanine and enclosure to the northern portion of the shed at 2 Deborah Road, Annangrove (Lot 9 in DP247628) within 7 days of the date of these orders being made by the Court.

Catchwords:

BUILDING INFORMATION CERTIFICATE APPEAL – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.25

Land and Environment Court Act 1979, s 34

The Hills Local Environmental Plan 2019

Cases Cited:

McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125

Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266

Texts Cited:

Australian Building Codes Board, Building Code of Australia

Category:

Principal judgment

Parties:

Josip Jakovljevic (First Applicant)
Nicole Carmen Jakovljevic (Second Applicant)
The Hills Shire Council (Respondent)

Representation:

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

Solicitors:
Messenger & Messenger Solicitors (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2022/205878

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal to issue a Building Information Certificate No. 102/2022/AEU (the BIC) seeking to regulate the unauthorised building works and the internal alterations within the existing rural shed, resulting in the conversion to a two-storey dwelling. The lower floor consisted of a kitchen, dining, and bathroom whilst the upstairs mezzanine level consisted of a lounge room/retreat and office space. These works are located at 2 Deborah Road, Annangrove, legally described as Lot 9 DP 247628 (the Site).

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 has been held on 15 November 2022. I have presided over the conciliation conference.

3. 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 directing the Respondent to issue a Building Information Certificate.

4. 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. The parties’ decision involves the Court exercising the function under s 8.25 of the EPA Act to direct the Respondent council to issue a Building Information Certificate for works the subject of the application, other than those works that were demolished as part of related appeal proceedings (see further below).

5. 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 s 8.25 of the EPA Act to direct the council to issue a Building Information Certificate. The parties explained how the jurisdictional prerequisites have been satisfied in a joint statement which I summarise below.

6. The Court has power to direct council to issue a Building Information Certificate under s8.25(3)(a) of the EPA Act.

7. A related appeal (proceedings 2022/00205877) was filed in relation to Development Control Order No. 3 – Demolish Works Order issued by The Hills Shire Council on 17 June 2022. That appeal has been resolved as follows:

1. The Applicants undertook demolition works (under Development Control Order No. 3) to remove unauthorised works comprising kitchen facilities;

2. The Respondent inspected the demolition works undertaken and confirmed they are acceptable;

3. The Respondent has revoked the Development Control Order No. 3; and

4. The Applicants’ have discontinued those proceedings.

8. As a result of the above resolution of proceedings 2022/00205877, the parties have reached an agreement in relation to the resolution of these proceedings for the Court to direct the Respondent to issue a Building Information Certificate.

9. The Site is zoned RU6 Transition Zone under The Hills Local Environmental Plan 2019. Dwelling houses are permissible with consent in this zone. Home occupations are permissible without consent in this zone.

10. The BIC relates to unauthorised works comprising staircase, mezzanine level and enclosure of walls within an already approved shed/garage which is ancillary to a dwelling house.

11. The Site has the benefit of several development consents, of relevance being as follows:

1. 565/2011/LA - Development consent for the construction of a rural shed and removal of 16 trees.

2. 166/2014/HA – Development consent for demolition of existing dwelling and construction of a two-storey dwelling, swimming pool, cabana and use of part of existing shed as home industry. This consent included approval of amendments to the shed, the subject of this Building Information Certificate.

12. The removal of the unauthorised kitchen results in the unauthorised works, the subject of the Building Information Certificate, being part of the approved rural shed/garage use, ancillary to the approved dwelling house. Without the unauthorised kitchen, the works cannot be considered to result in a secondary dwelling. The Court has established in numerous cases that a development can only be considered a dwelling with kitchen facilities (Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266 at [30]-[31]; McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125).

13. The use of the shed/garage is therefore already approved and the parties agree it is permissible.

14. All of the remaining unauthorised works are contained within the already approved shed. They are not visible externally. There is no, or minimal, environmental impact as a result.

15. As the use of the unauthorised works is as a shed, being class 10(a) under the Building Code of Australia (the BCA) classification, it does not require any further certification or works under the BCA.

16. A certificate in relation to the structural adequacy of the mezzanine level, prepared by Circle Z Design Pty Ltd dated 24 November 2022 has been provided to the Court. The Respondent, and the Court are satisfied that there are no outstanding issues regarding structural adequacy required to be dealt with.

17. 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. I adopt the reasons given by the parties as set out above.

18. 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:

19. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 the Respondent is ordered to issue a Building Information Certificate with respect to the unauthorised works comprising the staircase, mezzanine and enclosure to the northern portion of the shed at 2 Deborah Road, Annangrove (Lot 9 in DP247628) within 7 days of the date of these orders being made by the Court.

……………………….

E Espinosa

Commissioner of the Court

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Decision last updated: 15 December 2022