Minas v Goulburn Mulwaree Council (No 2)

[2021] NSWLEC 1537

Land and Environment Court

New South Wales

Medium Neutral Citation:

Minas v Goulburn Mulwaree Council (No 2) [2021] NSWLEC 1537

Hearing dates:

Conciliation conference on 12 May 2021, 23 June 2021, 12 and 21 July 2021

Date of orders:

17 September 2021

Decision date:

17 September 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See orders at [4] below

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to multi-storey dwelling – flooding impact – Building Information Certificate appeal – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.14, 8.25

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979 ss 34, 39

Category:

Principal judgment

Parties:

George Minas (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
M Winram (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/26549
2021/26550

Publication restriction:

No

Judgment

1. COMMISSIONER: I refer to my judgment dated 1 September 2021 in these proceedings, being Minas v Goulburn Mulwaree Council [2021] NSWLEC 1506 (Judgment No 1). The proceedings are:

1. Proceedings No 2021/26549 an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Goulburn Mulwaree Council’s (Council) refusal of development application DA/0216/2021 (DA) on 20 January 2021 for alterations and additions to a multi storey dwelling located at 15 Avoca Street Goulburn NSW being the whole of the land in Lot 8 in Deposited Plan 532532 (DA proceedings).

2. Proceedings No 2021/26550 an appeal pursuant to ss 8.25(1) and (2) of the EPA Act against Council’s refusal to grant Building Information Certificate Application BC/0027/2021 (BIC) dated 16 December 2020 located at 15 Avoca Street Goulburn NSW being the whole of the land in Lot 8 in Deposited Plan 532532 (BIC proceedings).

3. Both proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 May 2021, 23 June 2021, 12 and 21 July 2021. I presided over the conciliation conference.

5. In both proceedings the parties have filed a s 34 Agreement as follows:

1. DA proceedings on 26 August 2021;

2. BIC proceedings on 12 July 2021.

2. After Judgment No 1 was published, the parties complied with cl 55 of the Environmental Planning and Assessment Regulation 2000 together with the relevant directions given in Judgment No 1as follows:

1. On 3 September 2021 the Council uploaded the amended plans referred to in [33] of Judgment No 1 to the NSW Planning Portal, and filed a copy of the receipt by the NSW Department of Planning and Environment.

2. On 7 September 2021 the Applicant filed in Court a copy of the amended plans referred to in [33] of Judgment No 1.

3. On 7 September 2021 the Applicant filed in Court a copy of the following reports:

1. Amended Statement of Environmental Effects by Planning Ingenuity dated 9 June 2021.

2. Flood Assessment Letter and Risk Management Plan for the proposed alterations and additions, 15 Avoca Street, Goulburn by Archiplan Design Studio dated 24 June 2021, reference CPRT-N0200943.01 Rev F.

3. BCA Compliance Assessment Report by BCA Vision dated 31 May 2021, reference P210066 Issue 2.

(the Reports).

1. In reaching my conclusions in Judgment No 1, I considered the Reports as part of the information I received during the s 34 conciliation conference, so that I was satisfied that the parties’ decisions in both s 34 Agreements (dated 27 August 2021 and 12 July 2021 respectively) is one the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I was, and am, satisfied that each jurisdictional prerequisite had been met as set out in [21] - [31] of Judgment No 1.

3. I am now required under s 34(3) of the LEC Act to dispose of both proceedings in accordance with the parties’ decisions. I shall grant consent to the DA proceedings and uphold the appeal in the BIC proceedings as follows:

1. By exercising the power or function under ss 4.16 and 8.14 of the EPA Act and ss 34(3) and 39(2) of the LEC Act to grant consent in relation to the DA proceedings;

2. By exercising the power or function under s 8.25(3) of the EPA Act and ss 34(3) and 39 of the LEC Act to uphold the appeal in relation to the BIC proceedings.

4. The Court Orders:

In Proceedings No. 26549:

1. The appeal is upheld.

2. Development Application DA/0216/2021 for alterations and additions to existing dwellings, change of use of under-croft car parking to storage, erection of a groundkeepers’ shed and upgrade of stairs and balcony at 15 Avoca St Goulburn NSW is granted subject to the conditions of consent at annexure “A”.

The Court notes that the applicant has agreed to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

In Proceedings No. 21/26550:

(1)       The Court notes that it has agreed to the applicant relying upon the amended plans referred to in condition 2 of Annexure A of the development consent DA/0216/2021 granted in Proceedings No. 21/26549.

(2)       The appeal is upheld.

(3)       The respondent is directed to issue a Building Information Certificate in accordance with the Building Information Certificate Application BC/0027/2021 within 7 days of the issue of an occupation certificate for the whole of the development consent granted in DA/0216/2021.

The Court notes that the applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (233072, pdf)

Plans (2958217, pdf)

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Decision last updated: 17 September 2021