Kekatos v Ku-ring-gai Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kekatos v Ku-ring-gai Council [2020] NSWLEC 1548

Hearing dates:

Conciliation conference on 21 August and 30 October 2020

Date of orders:

10 November 2020

Decision date:

10 November 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Refer to orders below at [7]

Catchwords:

APPEAL – building information certificate – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Cases Cited:

Itaoui v Wollongong City Council [2020] NSWLEC 1260

Category:

Principal judgment

Parties:

Jim Kekatos (First Applicant)
Marissa Kopoulos (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
N Eastman (Applicants)
L Finn (Solicitor) (Respondent)

Solicitors:
Kekatos Lawyers (Applicants)
Hones Lawyers Pty Ltd (Respondent)

File Number(s):

2019/400562

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal by the applicants against the determination of Ku-ring-gai Council with respect to an application for a building information certificate for built works at 9 Birubi Avenue, Pymble (“the site”). Whilst the application was partially granted, a building information certificate was not issued with respect to the excavation and retaining walls on the site. The Council refused to issue a building information certificate with respect to the retaining wall components, and gave reasons for that refusal. The appeal is lodged pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows an appeal to the Court by an applicant who is dissatisfied with either a refusal of, or a failure to issue, a building information certificate. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached following a conciliation conference.

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 was held on 21 August 2020. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for certain works to be carried out by the applicants, following which the Council is directed to issue a building information certificate. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction as these decisions fall within the broad power of the Court set out in s 8.25(3) of the EPA Act to “direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit” (at (a)), and “make any other order that it considers appropriate” (at (c)). Section 8.25(3) provides:

(3) On hearing the appeal, the Court may do any…