Jurd v Northern Beaches Council

[2023] NSWLEC 1513

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jurd v Northern Beaches Council [2023] NSWLEC 1513

Hearing dates:

Conciliation Conference 14 August 2023

Date of orders:

12 September 2023

Decision date:

12 September 2023

Jurisdiction:

Class 1

Before:

Byrne AC

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 Northern Beaches Council is directed to issue a Building Information Certificate in respect of Building Information Certificate Application No BC/2022/0017 for the enclosure of the carport structure at 5 Elvina Avenue, Avalon Beach as shown on the following plans:

(a)   Landscape Plans 1-3 reference 2567/23 prepared by Paul Scrivener Landscape, issue C dated 18 August 2023, marked Annexure A.

(b)   Building Certificate Plans reference RES 129 prepared by Nvisage, revision A-1 dated 28 December 2021, marked Annexure B.

Catchwords:

MISCELLANEOUS APPEAL – Building Information Certificate – garage at front of dwelling house – 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

Texts Cited:

Pittwater 21 Development Control Plan

Category:

Principal judgment

Parties:

Cameron Jurd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/77456

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) for the refusal by Northern Beaches Council (Council) to issue a Building Information Certificate (BIC) in respect of the enclosure of the front, eastern and western sides of a carport located at 5 Elvina Ave, Avalon Beach, being Lot 19, DP 14883 (the site).

2. The appeal was lodged by Cameron Jurd, who is the owner of the property and the applicant for the BIC. Mr Jurd installed a garage door and side walls to his carport and Council contended this was not approved by the Development Consent that applied to the site. Mr Jurd lodged a BIC to regularise the structures and submitted in his SOFAC in Reply that the carport infill is reasonable having regard to the site features including landscaping, existing building line variations, approved carport position, lack of environmental harm and ability not to contravene the Avalon Development Control under the Pittwater 21 Development Control Plan (PDCP).

3. 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 site on 14 August 2023. I presided over the conciliation conference.

4. 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 allowing the existing garage door and associated structures to remain at the front the dwelling house. The orders sought by the parties are that the Council is to issue a BIC for the enclosure of the carport structure at the site and in accordance with agreed landscape and building plans referenced in the orders.

5. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

6. Jurisdictional requirements

7. The BIC was refused by Council on 10 October 2022 and the Class 1 appeal was lodged within 6 months in accordance with s 8.25(2) of the EPA Act.

8. With respect to a BIC appeal, s 8.25(3) of the EPA Act invests the Court with the following powers in the determination of the appeal:

8.25 Appeals with respect to Building Information Certificates

…

(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.

9. The parties’ decision involves the Court exercising the function under s 8.25(3)(a) of the EPA Act to direct the Council to issue a BIC.

10. I am satisfied on the evidence before me, my observations on site and oral submissions made to me on site, that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

11. 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.

12. 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 Northern Beaches Council is directed to issue a Building Information Certificate in respect of Building Information Certificate Application No BC/2022/0017 for the enclosure of the carport structure at 5 Elvina Avenue, Avalon Beach as shown on the following plans:

1. Landscape Plans 1-3 reference 2567/23 prepared by Paul Scrivener Landscape, issue C dated 18 August 2023, marked Annexure A.

2. Building Certificate Plans reference RES 129 prepared by Nvisage, revision A-1 dated 28 December 2021, marked Annexure B.

I certify that this and the preceding [2] pages are a true copy of my reasons for judgment.

L Byrne

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 19 September 2023