Nesseim v Ku-ring-gai Council

[2025] NSWLEC 1426

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nesseim v Ku-ring-gai Council [2025] NSWLEC 1426

Hearing dates:

Conciliation Conference 17 March 2025

Date of orders:

17 June 2025

Decision date:

17 June 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The applicant is directed to carry out the following works within 28 days of the Court Orders:

(a) Undertake the supplementary planting identified in the plan at Annexure A; (the Works);

(b) Upon completion of the Works, the applicant is to submit to the respondent photographic evidence of the completion of the works.

(3) The respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, to issue a Building Information Certificate with respect to the retaining walls depicted and identified in the plan at Annexure B at 16 Bromley Avenue, Pymble, being Lot 31 in DP 10389 within 7 days of receiving the certification referred to in Order 2(b).

(4) Liberty to apply to the Court is granted to either party to extend the time to comply with any of the orders on giving two days’ notice.

Catchwords:

MISCELLANEOUS APPEAL – Building Information Certificate – unlawful retaining walls erected – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 39

Category:

Principal judgment

Parties:

Ezzat Daniel Nesseim (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Wilshire Webb Staunton Beatie (Respondent)

File Number(s):

2024/176846
2024/88669

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by Ku-ring-gai Council (Council) to issue a Building Information Certificate (BIC) in respect of the construction of retaining walls which were unlawfully erected in the rear yard as part of the construction of a dwelling house on land at 16 Bromley Ave, Pymble, NSW (the Site).

2. In linked proceedings concerning a Development Control Order issued by Council (being case No 2024/88669), a Notice of Discontinuance was filed on 17 March 2025. As such, no orders are sought from the Court in respect of case No 2024/88669. In proceedings concerning the Building Information Certificate (being case No 2024/176846) the parties seek the orders set out in the s 34 agreement that was filed with the Court.

3. The appeal was lodged by Mr Nesseim, who is the owner of the property and the applicant for the BIC.

4. 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 Site.

5. 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 and met the Respondents contentions. The orders sought by the parties are that the Council is to issue a BIC for the retaining walls on conditions set out in Order (3) of the Court’s orders. The orders made by the Court include remedial works the Applicant must carry out.

6. The parties had before them two Joint Reports in reaching their agreement:

1. Joint Report - Town Planning - James Lovell for the Applicant (Town Planner) and Luke Donovan for the Respondent (Executive Assessment Officer, Ku-ring-gai Council) dated 12 March 2025;

2. Joint Report - Engineering - Khaled El Najjar for the Applicant (Engineer) and Bruce Kenny for the Respondent (Engineer) dated 14 March 2025.

7. It is not my role to consider the merits of the agreed decision of the parties. If there is no jurisdictional barrier, pursuant to s 34(3)(a) of the LEC Act, I must make the orders agreed by the parties.

Jurisdictional requirements

8. The Class 1 BIC appeal was lodged within the statutory period of six months in accordance with s 8.25(2) of the EPA Act.

9. Owner’s consent was provided for the BIC application as required by s 6.22(a) of the EPA Act.

10. The application for the BIC was lodged with Ku-ring-gai Council being the Council for the area in which the land to which the application relates is situated as required by s 6.23(1) of the Act.

11. The orders the respondent seeks the Court to make require the applicant to undertake works prior to the issuance of the BIC by the respondent which include the planting of additional vegetation consisting of four trees (Jacaranda Mimosifolia and Magnolia – Little Gem) and 10 smaller trees (Smithii – Lilly Pilly).

12. With respect to a BIC appeal, s 8.25(3) of the EPA Act vests the Court with the following powers in the determination of the appeal:

Section 8.25 Appeals with respect to building information certificates

...

(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.

13. The parties’ decision involves the Court exercising the function under s 8.25(3)(a) and s 8.25(3)(c) of the EPA Act to direct the Council to issue a BIC and make rectification orders involving works on the land that the Court considers appropriate. The Court accepts the orders agreed to by the parties as being appropriate in the circumstances of the appeal.

14. I am satisfied on the evidence before me, my observations on Site and oral submissions made to me on Site, that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

15. 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.

Orders

16. The Court orders that:

1. The appeal is upheld.

2. The applicant is directed to carry out the following works within 28 days of the Court Orders:

1. Undertake the supplementary planting identified in the plan at Annexure A; (the Works);

2. Upon completion of the Works, the applicant is to submit to the respondent photographic evidence of the completion of the works.

3. The respondent is directed pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, to issue a Building Information Certificate with respect to the retaining walls depicted and identified in the plan at Annexure B at 16 Bromley Avenue, Pymble, being Lot 31 in DP 10389 within 7 days of receiving the certification referred to in Order 2(b).

4. Liberty to apply to the Court is granted to either party to extend the time to comply with any of the orders on giving two days’ notice.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 17 June 2025