Primes v Liverpool City Council

[2020] NSWLEC 1373

Land and Environment Court

New South Wales

Medium Neutral Citation:

Primes v Liverpool City Council [2020] NSWLEC 1373

Hearing dates:

31 July 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) The development control order issued by the Respondent to the Applicant on 3 June 2019 is modified in accordance with the development control order at Annexure A.

(3) The exhibits are returned.

Catchwords:

DEVELOPMENT CONTROL ORDER – orders by consent of parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Liverpool Local Environmental Plan 2008

Category:

Principal judgment

Parties:

Oliver Guenter Primes (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Golinelli (Solicitor) (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
John Golinelli Solicitor (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2019/203277

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against a development control order issued by Liverpool City Council (the Council) pursuant to s 9.34(1)(a) of the EPA Act, to the owner of 3 St Johns Road, Busby (the site), to stop using a building because the building being used is in contravention of a planning approval and to demolish the building because the building was erected in contravention of the EPA Act.

2. The appeal was subject to conciliation on 28 February 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 29 April 2020, pursuant to s 34(4) of the LEC Act.

The development control order

3. The Council issued the development control order on 3 June 2019 (Ex 1, ff 156-158), following notice being given to the owner of the site of the Council’s intention to issue the development control order on 23 April 2019. The development control order required the owner of the site to stop use of the unauthorised secondary dwelling constructed at the rear of the primary dwelling; and to demolish the secondary dwelling constructed at the rear of the primary dwelling.

4. The development control order was to be complied with within 28 days of the date of the order.

The site

5. The site has an area of 569sqm. The site is zoned R3 Medium Density Residential pursuant to Liverpool Local Environmental Plan 2008.

Expert evidence

6. The applicant relies on an expert planning report prepared by Michael Gheorghiu (Ex A). Ex A includes a certificate issued by a structural engineer and dated 16 September 2018 certifying that the secondary dwelling constructed on the site is in accordance with the Building Code of Australia and the relevant Australian Standards, and that the structural engineer carried out periodic inspections and the works generally conformed to the structural drawings prepared by the structural engineer.

The Council’s submissions

7. A Complying Development Certificate for a proposed secondary dwelling was issued on 8 December 2014 (Ex A, f 17) (the planning approval). The Council submits that the secondary dwelling was erected in contravention of the planning approval issued.

8. The Council submits that a Principal Certifying Authority (PCA) was not appointed prior to commencing building works. The applicant did not submit a certificate of Home Warranty insurance to the PCA, in contravention of the planning approval, as there was no PCA engaged for the building works.

9. The Council submits that the development control order was issued because the secondary dwelling was erected in contravention of the planning approval; and because the secondary dwelling was erected in contravention of the EPA Act, as follows:

• The works were not carried out in accordance with the plans and specifications to which the planning approval related, because the flooring of the secondary dwelling was changed from bearers and joists to a concrete slab on ground, and because the levels of the structure were changed.

• No critical stage inspections were carried out by the PCA, because there was no PCA, and so no records of critical stage inspections were made, as required by cll 162A and 162B of the Environmental Planning and Assessment Regulation 2000.

10. The parties have reached agreement on the modified development control order. The Council is satisfied that the secondary dwelling can be used in the interim prior to the granting of any Building Information Certificate (BIC), or if a BIC is not issued, until the secondary dwelling is demolished. The Council is satisfied that the secondary dwelling is capable of being granted a BIC.

Conclusion

11. I am satisfied that it is lawful and appropriate to exercise the function under s 8.18(4)(b) of the EPA Act to modify the development control order, as agreed by the parties, having regard to the whole of the relevant circumstances.

Orders

12. The orders of the Court are:

1. The appeal is upheld.

2. The development control order issued by the Respondent to the Applicant on 3 June 2019 is modified in accordance with the development control order at Annexure A.

3. The exhibits are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (119201, pdf)

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Decision last updated: 20 August 2020