Qiu v Canterbury-Bankstown Council

[2019] NSWLEC 1419

Land and Environment Court

New South Wales

Medium Neutral Citation:	Qiu v Canterbury-Bankstown Council [2019] NSWLEC 1419
Hearing dates:	Conciliation conference on 2 September 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders: (1)   The appeal filed on 4 January 2019 is upheld insofar as it relates to orders (1) and (2) sought by the applicants. (2)   Order (3) sought by the applicants is dismissed. (3)   The applicants are granted leave to rely on the following additional material, copies of which are contained at ‘Annexure A’ to this agreement: (a)   Fire Engineering Report prepared by Dobbs Doherty Pty Ltd, dated 17 July 2019; and (b)   Compliance Certificate prepared by G. Botros, Consultant Engineer, dated 13 August 2019. (4)   Subdivision Certificate Application No. SUB-97/2016 for the Torrens Title subdivision of an attached dual occupancy on Lot 1 in Deposited Plan 18063, otherwise known as 140 The River Road, Revesby, is approved. (5)   Each party is to pay its own costs of the proceedings.
Catchwords:	APPEAL – subdivision certificate – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Shiquan Qiu (First Applicant) Yuhui Chen (Second Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: S Qiu (self-represented) (First Applicant) Y Chen (self-represented) (Second Applicant) D Loether (Solicitor) (Respondent)   Solicitors: Bartier Perry Lawyers (Respondent)
File Number(s):	2019/3543
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal is against the refusal by Canterbury-Bankstown Council to issue a subdivision certificate for a Torrens title subdivision of an attached dual occupancy at 140 The River Road, Revesby. The appeal is lodged pursuant to s 8.16 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). The final orders in this appeal, outlined in [7] 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 2 September 2019. I presided over the conciliation conference.

3. Following 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 included the grant of leave to rely on additional material that demonstrates that the external wall eaves and facia that are located less than 450mm from the proposed boundary are constructed with non-combustible material and comply with the applicable fire safety performance standards in the Building Code of Australia. The decision also includes the approval of the application for a subdivision certificate.

4. 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 cl 160 of the Environmental Planning and Assessment Regulation 2000, which is exercisable by the Court in accordance with s 39(2) of the LEC Act. I am not aware of, and the parties have not identified, any jurisdictional prerequisites that must be satisfied before this function can be exercised.

5. 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.

6. 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.

7. The Court orders that:

1. The appeal filed on 4 January 2019 is upheld insofar as it relates to orders (1) and (2) sought by the applicants.

2. Order (3) sought by the applicants is dismissed.

3. The applicants are granted leave to rely on the following additional material, copies of which are contained at ‘Annexure A’ to this agreement:

1. Fire Engineering Report prepared by Dobbs Doherty Pty Ltd, dated 17 July 2019; and

2. Compliance Certificate prepared by G. Botros, Consultant Engineer, dated 13 August 2019.

4. Subdivision Certificate Application No. SUB-97/2016 for the Torrens Title subdivision of an attached dual occupancy on Lot 1 in Deposited Plan 18063, otherwise known as 140 The River Road, Revesby, is approved.

5. Each party is to pay its own costs of the proceedings.

…………………………

J Gray

Commissioner of the Court

Annexure A (2.27 MB)

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Decision last updated: 06 September 2019