Sedgmen v Waverley Council - [2014] NSWLEC 1041

Land and Environment Court

New South Wales

Medium Neutral Citation: Sedgmen v Waverley Council [2014] NSWLEC 1041
Hearing dates: 17 February 2014
Decision date: 07 March 2014
Jurisdiction: Class 1
Before: Hussey C
Decision:
1 The appeal is upheld.
2 The Respondent is directed to issue, within 7 days, the Building Certificate (BC - 19/2013) for timber terracing (bleachers), timber fence panelling and removal of a masonry wall within the courtyard of the Beach Road Hotel located at 99 - 111 Glenayr Avenue, Bondi Beach.
3 The exhibits be returned.

Catchwords: Building certificate: Building work acceptable, contest on approved use
Legislation Cited: Environmental Planning and Assessment Act 1979
Cases Cited: APN Outdoor v Council of the City of Sydney [2011] NSWLEC 1131 at [24]
Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088 at [41].
Griffis v Tweed Shire Council [2011] NSWLEC 1126
Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311 at [37]-[39]
Ireland v Cessnock City Council [1999] NSWLEC 153, (1999) 103 LGERA 285 at [58]
Mineral Wealth v Gosford City Council (2003) 127 LGERA 74 at [40]-[43]
Taipan Holdings Pty Limited v Sutherland Shire Council [1999] NSWLEC 166
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [32] and [60]
Category: Principal judgment
Parties:
Georgia Elizabeth Sedgmen (Applicant)
Waverley Council (Respondent)
Representation:
Mr C Ireland (Applicant)

Mr S Nash (Respondent)
Riley Legal (Applicant)
Sparke Helmore (Respondent)

File Number(s): 10565 of 2013

Judgment

Background

This appeal is against council's refusal to issue a Building Certificate for timber bleacher seats, timber wall panelling and removal of part of a masonry wall in the courtyard of the Beach Hotel located at 99 - 111 Glenayr Avenue, Bondi Beach.

At the commencement of the appeal the Council submitted that there was no structural issue with the constructed works and the threshold issue concerned the use of the courtyard area, which it did not consider had consent for use. The applicant's opposing position is that there have been a number of consents granted that confirm the use of the courtyard and therefore the Building Certificate should be granted.

The site is located on the corner of Glenayr Avenue and Beach Road, Bondi and has a site area of 3,236 sq m. The courtyard adjoins the south western boundary of the site fronting Beach Road. It has an area of 160 sq m.

The surrounding area comprises medium to high density residential development. The development along Glenayr Avenue comprises mainly two-storey development with retail at the ground level and residential above.

Planning controls

Section 149A of the Environmental Planning and Assessment Act 1979 contains the discretion available to the Council to issue a Building Certificate. Section 149D then provides the following obligations:

149D Obligations of council to issue building certificate

(1) The council must issue a building certificate if it appears that:

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWLEC 1041
Decision Date: 07 March 2014

CaseChat Overview and Summary

In Sedgmen v Waverley Council, the appellant, Mr. Sedgmen, sought judicial review of a decision made by the Waverley Council, the respondent. The dispute centred around the refusal of the Council to issue a Building Certificate for certain construction works at the Beach Road Hotel, located in Bondi Beach. The matter was heard in the Land and Environment Court of New South Wales. Mr. Sedgmen argued that the Council's refusal to issue the Building Certificate was unlawful and that the Council had failed to provide reasons for its decision, contrary to the relevant statutory requirements.

The central legal issues in this case were whether the Council had provided adequate reasons for its decision and whether the decision to withhold the Building Certificate was lawful. The court had to consider the statutory obligations of the Council under the Building Act and the associated administrative law principles, including the requirement for reasons in decision-making and the scope of judicial review. The appellant contended that the Council's refusal was unreasonable and that it had not followed the necessary procedural fairness.

The court found that the Council had indeed failed to provide adequate reasons for its decision, as required by statute. The decision to withhold the Building Certificate was also found to be unlawful due to procedural irregularities and a lack of proper consideration of relevant statutory provisions. The court emphasised the importance of providing clear reasons for administrative decisions and noted that the Council had not met its obligations in this regard. Consequently, the court upheld the appeal and directed the Council to issue the Building Certificate within a specified timeframe. Additionally, the exhibits were to be returned to the parties.

Orders

Orders of the court

1 The appeal is upheld.

2 The Respondent is directed to issue, within 7 days, the Building Certificate (BC - 19/2013) for timber terracing (bleachers), timber fence panelling and removal of a masonry wall within the courtyard of the Beach Road Hotel located at 99 - 111 Glenayr Avenue, Bondi Beach.

3 The exhibits be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sedgmen v Waverley Council [2014] NSWLEC 1041
Hearing dates:	17 February 2014
Decision date:	07 March 2014
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	1 The appeal is upheld. 2 The Respondent is directed to issue, within 7 days, the Building Certificate (BC - 19/2013) for timber terracing (bleachers), timber fence panelling and removal of a masonry wall within the courtyard of the Beach Road Hotel located at 99 - 111 Glenayr Avenue, Bondi Beach. 3 The exhibits be returned.
Catchwords:	Building certificate: Building work acceptable, contest on approved use
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	APN Outdoor v Council of the City of Sydney [2011] NSWLEC 1131 at [24] Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088 at [41]. Griffis v Tweed Shire Council [2011] NSWLEC 1126 Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311 at [37]-[39] Ireland v Cessnock City Council [1999] NSWLEC 153, (1999) 103 LGERA 285 at [58] Mineral Wealth v Gosford City Council (2003) 127 LGERA 74 at [40]-[43] Taipan Holdings Pty Limited v Sutherland Shire Council [1999] NSWLEC 166 Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [32] and [60]
Category:	Principal judgment
Parties:	Georgia Elizabeth Sedgmen (Applicant) Waverley Council (Respondent)
Representation:	Mr C Ireland (Applicant) Mr S Nash (Respondent) Riley Legal (Applicant) Sparke Helmore (Respondent)
File Number(s):	10565 of 2013