Master Alchemy Pty Ltd v Byron Shire Council

[2021] NSWLEC 1311

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Master Alchemy Pty Ltd v Byron Shire Council and Anor [2021] NSWLEC 1311

Hearing dates:

Conciliation conference on 20 May 2021

Date of orders:

1 June 2021

Decision date:

01 June 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The Applicant is to provide to the First Respondent a copy of the following plans and information setting out the works the subject of these proceedings as executed by 30 September 2021:

(a) Updated structural engineer’s certification of the remaining retaining walls and access stair;

(b) Certification from a suitably qualified person (building consultant) addressing P2.5.1 of the Building Code of Australia;

(c) Updated survey showing the structures after the works have been completed; and

(d) Updated structural engineering plans showing the remaining structures.

(2) The appeal is upheld. 

(3) Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the First Respondent is directed to issue a building certificate to the Applicant, if the Respondent is satisfied that the works identified in the plans referred to in Order (1) have been carried out in accordance with the plans, within 28 days of receiving the information.

(4) Liberty to apply on 48 hours’ notice is granted to the parties if more time is required or an issue arises between the parties; and

(5) Each party is to pay its own costs of the appeal.

Catchwords:

BUILDING CERTIFICATE APPLICATION – jetty structure partly on Crown Land – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.25

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Master Alchemy Pty Ltd (Applicant)
Byron Shire Council (First Respondent)
Minister for Water, Property and Housing (Second Respondent)

Representation:

Counsel:
R McCann (Solicitor) (Applicant)
C Rose (Solicitor) (First Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (First Respondent)
Department of Planning Industry and Environment (Second Respondent)

File Number(s):

2019/182379

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Building Information Certificate Application No. 50.2019.12 for a timber deck, retaining wall and stairs which are part of an existing jetty (the works) at 4 Childe Street, Byron Bay (Lots 35 and 36 on Section 3 of DP 1623, owned by the Applicant) and on Crown Land (the site), by Byron Shire Council (the Council).

2. The Second Respondent filed a Submitting Appearance on 30 March 2020.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 May 2021. I presided over the conciliation conference. 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.

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. I am satisfied that the parties’ agreement is a decision that the Court could have made in the exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.25(3) of the EPA Act to direct the Council to issue a Building Information Certificate subject to conditions. Section 8.25(3) of the EPA Act is in the following terms:

(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.

5. The Applicant received landowner’s consent from Crown Lands in respect of the works to be carried out on 12 May 2021 (attached to the Jurisdictional Statement, Attachment 1). The landowner’s consent relates to the part of the retaining wall that is on the boundary of Lot 37 in Section 3 of DP 1623.

6. The parties’ agreement requires works to be carried out in accordance with Order (1) and as documented by the Structural Engineer’s plans attached to the Jurisdictional Statement and identified as “Site Layout Drawings A1 and A2 Revision D”. I accept the parties’ submission that there is good reason for the grant of liberty to apply, as compliance with the orders could be delayed for a range of reasons beyond the control of either party.

Orders

7. The orders of the Court are:

1. The Applicant is to provide to the First Respondent a copy of the following plans and information setting out the works the subject of these proceedings as executed by 30 September 2021:

1. Updated structural engineer’s certification of the remaining retaining walls and access stair;

2. Certification from a suitably qualified person (building consultant) addressing P2.5.1 of the Building Code of Australia;

3. Updated survey showing the structures after the works have been completed; and

4. Updated structural engineering plans showing the remaining structures.

2. The appeal is upheld.

3. Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the First Respondent is directed to issue a Building Information Certificate to the Applicant, if the Respondent is satisfied that the works identified in the plans referred to in Order (1) have been carried out in accordance with the plans, within 28 days of receiving the information.

4. Liberty to apply on 48 hours’ notice is granted to the parties if more time is required or an issue arises between the parties; and

5. Each party is to pay its own costs of the appeal.

____________

Susan O’Neill

Commissioner of the Court

Attachment 1 (725657, pdf)

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Amendments

02 June 2021 - Pursuant to UCPR r 36.17, and by consent of the parties, the Court amends Order (1) of the judgment, by varying the date provided from “31 August 2021” to “30 September 2021” and as a result Order (1) will read as follows:

(1) The Applicant is to provide to the Respondent a copy of the following plans and information setting out the works the subject of these proceedings as executed by 30 September 2021.

Decision last updated: 02 June 2021