Samar Holdings (Aust) Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1625

Land and Environment Court

New South Wales

Medium Neutral Citation:	Samar Holdings (Aust) Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1625
Hearing dates:	Conciliation conference on 13 November 2019; 5 December 2019
Date of orders:	17 December 2019
Decision date:	17 December 2019
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court orders: (1)   The appeal is upheld. (2)   By 6 September 2020, the Applicant is to carry out the works in accordance with the plans and documents as attached at Annexure A and in accordance with the conditions at Annexure B; and (3) The Court directs the Respondent to issue a Building Information Certificate for application No BC18/0093 pursuant to s. 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 within 28 days of the Applicant complying with Order (2).
Catchwords:	DEVELOPMENT APPLICATION – building information certificate – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Samar Holdings (Aust) Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: G Shapiro (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent)   Solicitors: Hones Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/43230
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought by the Applicant (Samar Holdings (Aust) Pty Ltd) against the refusal by the Respondent (Sutherland Shire Council) to issue a Building Information Certificate (BIC) in relation to Lot 101 in DP 1143299, known as 191 Fowler Road, Illawong, under the provisions of s 8.25(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The property is a long block with a frontage to Fowler Road of 17.8m and falling northwards towards the Georges River, with a length of 97m on the western boundary and 93m on the eastern boundary and a site area of 123.4m². There is a cross fall to the east.

3. Under the Sutherland Shire Local Environmental Plan 2015 (SSLEP), the land is zoned E3 Environmental Management. To the north of the property, extending to the Georges River is Crown land zoned E2 Environmental Conservation.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). This was held on 13 November 2019 and 5 December 2019. I presided over the conciliation conference.

5. In January 2014, the Respondent granted approval for Development Application No. DA13/0703 for the construction of a new dwelling, swimming pool, front fencing and landscaping. The works approved were to be situated on the upper part of the site. No works were to be carried out on the southern part of the site.

6. The site in its totality has been cleared. In the part of the site north of the area approved for development by DA 13/0703, all trees (except for one) have been removed, along with the understorey vegetation. Four roughly level terraces have been constructed with retaining walls made of sandstone blocks running across the site connecting to retaining walls along the site boundaries. The natural topography, including the cross fall, has been replaced by a constructed landscape.

7. Prior to the s34 conciliation, the parties engaged in extensive discussion and had reached an agreement. At the conciliation, discussion between myself and the parties resulted in some clarification and editorial changes to the agreement. The agreement reached between the parties under s 34(3) of the LEC Act sets out the terms of a decision in the proceedings which would be acceptable to the parties. As the presiding Commissioner, I am satisfied that the decision is one which the Court can make in the proper exercise of its functions – this being the test to be applied under s 34(3) of the LEC Act.

8. The decision involves carrying out the works specified in the plans and documents which form the attachment “Annexure A” to this judgment, in accordance with the conditions in “Annexure B”.

9. Works required include the removal of the cross retaining walls, other than that at the northern boundary of the approved works, and also the removal of the side retaining walls. Work is to be carried out according to the requirements of the engineering report (in Annexure A) and the land surface is to be re-contoured so as to reinstate to the maximum extent practical to the original land surface. A detailed replanting with appropriate native species is to be carried, with continuing management of the vegetation, in accordance with the Native Vegetation Management Plan (NVMP). I am satisfied that implementation of the NVMP in conjunction with the reforming of the land surface in accordance with the plans and reports specified in Annexure A and the conditions in Annexure B will address biodiversity, bushfire hazard concerns, contentions relating to safety and stability of the land surface and will reduce impacts on the neighbours on both sides of the property.

10. The Court has very wide scope under s 8.25(3)(a) and (c) of the EPA Act when determining an appeal under s 8.25(1). The terms of s 8.25(3) are:

(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.

11. I am satisfied that the decision requested by the parties is appropriate and that there are no jurisdictional impediments arising from SSLEP or other legislation to making the orders below.

Orders

12. The Court orders that:

1. The appeal is upheld.

2. By 6 September 2020, the Applicant is to carry out the works in accordance with the plans and documents as attached at Annexure A and in accordance with the conditions at Annexure B; and

3. The Court directs the Respondent to issue a Building Information Certificate for application No BC18/0093 pursuant to s. 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 within 28 days of the Applicant complying with Order (2).

……………………………

P Adam

Acting Commissioner of the Court

Annexure A (10.6 MB, pdf)

Annexure B (65.1 KB, pdf)

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Decision last updated: 24 December 2019