Saadie v Bayside Council

[2025] NSWLEC 1449

Land and Environment Court

New South Wales

Medium Neutral Citation:

Saadie v Bayside Council [2025] NSWLEC 1449

Hearing dates:

Conciliation Conference 16 April 2025

Date of orders:

20 June 2025

Decision date:

20 June 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979 (EPA Act), the Respondent is directed to issue a Building Information Certificate within 14 days of the date of these orders in respect of Building Information Certificate Application No BC-2023/24 for only that part of the awning at 71 Short Street, Carlton, being Lot 16 of Section 14 in Deposited Plan 2122, shown on the survey plan annexed at Annexure A.

(3) Pursuant to section 8.25(3)(b) of the EPA Act, the respondent’s notice to supply information dated 1 May 2024 in respect of Building Information Certificate Application No BC-2023/24 is revoked.

Catchwords:

BUILDING INFORMATION CERTIFICATE — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.25

Land and Environment Court Act 1979, ss 17, 34

Bayside Local Environmental Plan 2021

Texts Cited:

Bayside Development Control Plan 2022

Category:

Principal judgment

Parties:

Beriah Saadie (First Applicant)
Dani Ramez Saadie (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
M El-Saj (Solicitor) (Applicants)
P Brown (Solicitor) (Respondent)

Solicitors:
MR Law Group (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/402384

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the:

1. refusal of Building Information Certificate (BIC) Application BC-2023/24 (BIC Application), being an application by the applicants to regularise an unauthorised awning at the rear of the dwelling located at 71 Short Street, Carlton, being Lot 16 Section 14 in Deposited Plan 2122 (Subject Land); and

2. issuing of a notice to supply information in connection with the BIC Application (Notice).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Subject Land is zoned R2 Low Density Residential under the Bayside Local Environmental Plan 2021 (BLEP). The Subject Land is owned by the applicants.

4. Between the period of March and May 2022 (approximately), an awning was constructed (although there is some dispute about whether it was constructed in its entirety or partially repaired) at the rear of the dwelling located on the Subject Land (Awning).

5. It was the respondent’s contention that the Awning:

1. was erected unlawfully;

2. had not been assessed against the relevant planning controls and Building Code of Australia;

3. was non-compliant with setback controls contained within the Bayside Development Control Plan 2022 (BDCP);

4. had the potential for visual and other adverse impacts upon adjoining properties; and

5. had potential for stormwater impacts that had not been assessed.

6. On 24 May 2023, the applicant submitted the BIC Application seeking to regularise the Awning.

7. On 1 May 2024, the respondent issued the applicants with a notice to supply information within 14 days.

8. Following various communications from the applicants to the respondent, the application was refused by the respondent on 13 August 2024.

9. On 30 October 2024, the applicant commenced these proceedings, being within the time period specified in s 8.25 of the EPA Act.

10. On 16 April 2025, the parties participated in a s 34 conference which was adjourned on one occasion. I presided over the conciliation conference.

11. During the course of the conciliation process, the applicants provided further information and the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision that would be acceptable to the parties. The decision agreed upon is for the appeal to be upheld in part, and the respondent be directed under s 8.25(3) of the EPA Act to partially issue the BIC in respect of the Awning.

12. The parties provided a signed s 34 agreement and accompanying jurisdictional statement on 12 June 2025.

13. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders directing the respondent to issue the BIC in the terms proposed by the parties is a decision that the Court can make in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

14. On hearing an appeal in connection with a BIC under s 8.25(1) of the EPA Act, pursuant to s 8.25(3), the Court may do any one or more of the following –

direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

revoke, alter or confirm a notice to supply information,

make any other order that it considers appropriate.

15. I am satisfied that the respondent should be directed to issue a BIC in the terms proposed by the parties on the basis that:

1. The applicants are the registered proprietors of the Subject Land upon which the Awning works were carried out.

2. The Awning comprises works to, or ancillary to, a dwelling house. Dwelling houses are permissible with consent in the R2 Low Density Zone under the BLEP, being the zone in which the Subject Land is located.

3. The information now provided in respect of the BIC Application including:

1. Structural Adequacy Certificate prepared by Global Projects Engineers Pty Ltd dated 13 March 2023 (see Class 1 Application);

2. National Construction Code Compliance Capability Letter prepared by Certified Building Specialists dated 12 May 2025;

3. Termite Control Certificate prepared by MHF Termite Barriers dated 9 May 2025; and

4. Survey Plan prepared by W Buxton Pty Limited dated 27 May 2025 (Survey Plan),

5. address the respondent’s concerns.

4. For the purposes of s 8.25(3)(a) of the EPA Act, only those parts of the Awning identified on the Survey Plan should be the subject of the BIC as issued, on the basis that the balance of the Awning the subject of the BIC Application has already been removed.

5. Those parts of the Awning which remain and are proposed to be regularised via the BIC are acceptable having regard to relevant provisions of the BLEP and BDCP and are contained entirely within the Subject Land such that owners’ consent from adjoining properties is not required.

16. I accept the parties’ submission that there is no impediment to the Court directing the respondent to issue the BIC on the terms proposed having regard to the additional information provided by the applicants.

Conclusion

17. 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 DA Proceedings and BIC Proceedings in accordance with the parties’ decision.

Orders

18. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.25(3) of the Environmental Planning and Assessment Act 1979 (EPA Act), the Respondent is directed to issue a Building Information Certificate within 14 days of the date of these orders in respect of Building Information Certificate Application No BC-2023/24 for only that part of the awning at 71 Short Street, Carlton, being Lot 16 of Section 14 in Deposited Plan 2122, shown on the survey plan annexed at Annexure A.

3. Pursuant to section 8.25(3)(b) of the EPA Act, the respondent’s notice to supply information dated 1 May 2024 in respect of Building Information Certificate Application No BC-2023/24 is revoked.

N Targett

Commissioner of the Court

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Annexure A (893 KB, pdf)

Decision last updated: 20 June 2025