Michael v Hunters Hill Council

[2019] NSWLEC 1281

Land and Environment Court

New South Wales

Medium Neutral Citation:	Michael v Hunters Hill Council [2019] NSWLEC 1281
Hearing dates:	Conciliation conference on 23 May 2019
Date of orders:	25 June 2019
Decision date:	25 June 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: see [9]
Catchwords:	BUILDING CERTIFICATE APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Rhonda Mary Michael (Applicant) Hunters Hill Council (Respondent)
Representation:	Solicitors: D Michael, M & A Lawyers (Applicant) J Cole, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/306896
Publication restriction:	No

Judgment

1. COMMISSIONER: Rhonda Michael (the Applicant) has appealed the refusal of her application for a Building Certificate (No. 2018/001), by Hunters Hill Council (the Respondent) in relation to a pergola and operable retractable roof terrace at 2 Aspinall Place Hunters Hill, (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

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 has been held on 23 May 2019, and I have 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 the Court upholding the appeal and granting consent to the development application, subject to conditions.

5. 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 4.16 of the EPA Act to grant consent to the development application.

6. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. 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.

8. 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.

9. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.25(3)(a) and (c) of the Environmental Planning and Assessment Act1979, the Court makes the Orders in respect of the pergola structure at 2 Aspinall Place, Woolwich NSW 2110, Lot 2 in DP 236294:

1. Within 28 days of the date of these Orders, the Applicant is to:

1. trim the hedges in the southern planter box at the southern side of the balcony/terrace (adjacent to 1 Aspinall Place, Woolwich) and in the northern and western planter boxes (facing the cul-de-sac and adjacent to 3 Aspinall Place, Woolwich) to a height no greater than 2.1 m from the finished floor level of the balcony/terrace, as indicated on the plans which are annexed to these Orders at Schedule 1;

2. permanently disable the integrated lighting within the operable roof of the pergola structure the subject of this appeal (“Pergola Structure”) as indicated in red on the plans which are annexed to these Orders at Schedule 1; and

3. notify the Respondent (“Council”) when it has complied with Order (a)(i) and (a)(ii) above.

2. Within 90 days of the date of these Orders, the Applicant is to:

1. carry out the partial demolition and reconstruction works of the Pergola Structure, with such work to be carried out by a licenced builder and/or an appropriately qualified person, as indicated in red on the plans which are annexed to these Orders at Schedule 1;

2. provide the Council with a structural certificate or report from a qualified structural engineer certifying the structural adequacy of the Pergola Structure following the completion of the works required by Order (b)(i) above; and

3. notify the Council when it has complied with Orders (b)(i) and (ii) above.

3. Within 14 days of the notification referred to in Order (b)(iii) above, the Council:

1. is to carry out an inspection of the Pergola Structure and associated balcony/terrace to confirm compliance with Orders (a)(i) and (a)(ii) and (b)(i) and (b)(ii) above, at a mutually agreed time or failing agreement upon providing 48 hours' notice;

2. notify the Applicant in writing within two days after the inspection referred to in Order (c)(i) above, as to whether it is satisfied that the Applicant has complied with Orders (a)(i) and (ii) and (b)(i) and (ii) above;

3. upon the Council providing, in accordance with Order (ii) above, written notice to the Applicant in writing as to its satisfaction that the Applicant has complied with Orders (a)(i) and (ii) and (b)(i) and (ii) above, the Council is thereby directed, within 14 days, to issue a Building Information Certificate to the Respondent in relation to the Pergola Structure;

4. the parties are granted liberty to restore the matter to the list to resolve any dispute in relation to compliance with Orders (a)(i) and (ii), (b)(i) and (ii) and (c)(iii) above, with liberty to restore the matter to the list to cease upon Council’s compliance with Order (c)(iii) above; and

5. Continuing on an ongoing basis following the issue of the Building Information Certificate in relation to the Pergola Structure, for the life of the Pergola Structure, the owner of 2 Aspinall Place, Woolwich NSW 2110 (Lot 2 DP 236294) must:

6. cause the hedges in the southern planter box at the southern side of the balcony/terrace (adjacent to 1 Aspinall Place, Woolwich) and in the northern and western planter boxes (facing the cul-de-sac and adjacent to 3 Aspinall Place, Woolwich) to be trimmed and/or maintained at a height no greater than 2.1 m from the finished floor level of the balcony/terrace, as indicated on the plans which are annexed to these Orders at Schedule 1; and

7. cause the integrated lighting within the operable roof of the Pergola Structure to remain permanently disabled and inoperable, as indicated on the plans which are annexed to these Orders at Schedule 1.

…………………………….

M Chilcott

Commissioner of the Court

Schedule 1 (1.51 MB)

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Decision last updated: 25 June 2019