Narwee Hotel Property Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1214

Land and Environment Court

New South Wales

Medium Neutral Citation:

Narwee Hotel Property Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1214

Hearing dates:

Conciliation conference on 19 April 2024

Date of orders:

23 April 2024

Decision date:

23 April 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue a building information certificate in relation to the external illuminated advertising signage attached to the southern façade of the existing building and the freestanding illuminated advertising pylon sign on the south-western corner of the Site in terms of the draft building information certificate which is annexed and marked "A".

(3) The Building Information Certificate referred to in Order (2), shall be issued by the Respondent within 14 days of the date of these orders.

Catchwords:

APPEAL – building information certificate – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.22, 6.23, 8.25

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Narwee Hotel Property Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
A Adams (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/205801

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal by the applicant against the refusal of the respondent to issue a building information certificate for the external illuminated advertising signage attached to the southern façade of the existing building (wall sign) and a freestanding illuminated advertising pylon sign on the south-western corner of the land (pylon sign) at 116 Penshurst Road, Narwee. 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 [8] below, are made as a result of an agreement between the parties that was reached at 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 19 April 2024. I presided over the conciliation conference.

3. At 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 under s 34(3) of the LEC Act is that the Council is directed to issue a building information certificate for the wall sign and the pylon sign. The signed agreement is supported by an agreed Jurisdictional Statement, which outlines the history that informs the agreement reached and the jurisdictional matters about which the Court must be satisfied prior to making orders in accordance with the agreement reached.

4. 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 this decision falls within the 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)). Section 8.25(3) provides:

(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. In addition, the application for the building information certificate met the requirements of ss 6.22 and 6.23 of the EPA Act.

6. Having reached the state of satisfaction that the decision agreed upon is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the grant of a building information certificate.

Orders

8. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue a building information certificate in relation to the external illuminated advertising signage attached to the southern façade of the existing building and the freestanding illuminated advertising pylon sign on the south-western corner of the Site in terms of the draft building information certificate which is annexed and marked "A".

3. The Building Information Certificate referred to in Order (2), shall be issued by the Respondent within 14 days of the date of these orders.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 23 April 2024