SGH Property Holdings Pty Ltd v Canterbury-Bankstown Council

[2025] NSWLEC 1029

Land and Environment Court

New South Wales

Medium Neutral Citation:

SGH Property Holdings Pty Ltd v Canterbury-Bankstown Council [2025] NSWLEC 1029

Hearing dates:

Conciliation conference on 15 and 30 October 2024, 19 November 2024, 11 and 16 December 2024.

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court Orders:

(1) The appeal is upheld.

(2) Within seven (7) days of the date of these Orders, pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue the Building Information Certificate BC-75/2024 dated 3 July 2024 in relation to the eight (8) business identification signs constructed at the St George Hotel, 618 Canterbury Road, Belmore NSW 2192 being the whole of the land in Lot 1 Deposited Plan 125346 and Lot 1 Deposited Plan 917680.

Catchwords:

BUILDING INFORMATION CERTIFICATE – business identification signs – conciliation conference – agreement between the parties - orders

Legislation Cited:

Encroachment of Buildings Act 1922

Environmental Planning and Assessment Act 1979 ss 6.22, 8.25

Land and Environment Court Act 1979 ss 17, 34, 64

Environmental Planning and Assessment Regulation 2021, s 248

Category:

Principal judgment

Parties:

SGH Property Holdings Pty Ltd (ACN 635 582 160) (Applicant)
Canterbury-Bankstown Council ABN 45 985 891 846
(Respondent)

Representation:

Counsel:
D Plowman (Solicitor)(Applicant)
M Bonnano (Solicitor)(Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2024/334426

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Canterbury-Bankstown Council’s (Council) deemed refusal of Building Information Certificate BC-75/2024 (BIC) to regularise the physical structures of eight (8) business identification signs (signs) that have been constructed at the St George Hotel, 618 Canterbury Road, Belmore (St George Hotel) being the whole of the land in Lot 1 Deposited Plan 125346 and Lot 1 Deposited Plan 917880 (Land).

2. On 3 July 2024 the Applicant lodged the BIC with Council.

3. On 10 September 2024 the Applicant commenced these proceedings pursuant to s 8.25(1)(b) of the EPA Act and the time provisions in s 8.25(2) of the EPA Act and s 248(1) and (2) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

4. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment court Act 1979 (LEC Act).

5. The statutory power or function to be exercised in determining the proceedings are ss 8.25(4) of the EPA Act and 34(3) of the LEC Act.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 15 and 30 October 2024, 19 November 2024, 11 and 16 December 2024. I presided over the conciliation conference.

7. At 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 involved the Court upholding the appeal, and ordering the Council to issue the BIC.

8. 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 its function under s 8.25(4) of the EPA Act and s 34(3) of the LEC Act to uphold the appeal and order the Council to issue the BIC. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied as follows:

1. On 10 September 2024 the Applicant filed its appeal pursuant to s 8.25(1) of the EPA Act.

2. The appeal was filed within the prescribed period to do so pursuant to s 8.25(2) of the EPA Act.

3. Subsequently Council refused the BIC on 13 September 2024.

4. The Applicant is also the owner of the Land and is empowered to make the BIC application pursuant to s 6.22(1) of the EPA Act.

5. There are related proceedings to these proceedings (24/334426):

1. Proceedings 2024/92786 being an appeal by Michael Lawrence Wiggins against Council in relation to Development Control Order No. 6 (Remove Advertising Order) issued by Council on 24 July 2024 in respect of the eight (8) business identification signs (signs) the subject of these proceedings. Transport for NSW (TfNSW) intervened in these proceedings pursuant to s 64(1) of the LEC Act on 22 October 2024, and withdrew its intervention on 19 December 2024. A Notice of Discontinuance was filed in proceedings 24/92786 on 24 December 2024.

2. Proceedings 2024/334400 pursuant to s 8.7(1) of the EPA Act being an appeal against refusal of a development application DA-642/2024 to permit the use of the signs. An Agreement pursuant to s 34(3) of the LEC Act has been filed, and a judgment will be published on the same day as the judgment in these proceedings.

3. Proceedings 2024/414626 pursuant to the Encroachment of Buildings Act 1922 being an appeal seeking regularisation of two (2) minor encroachments on Council’s land by one (1) of the signs in these proceedings. The details of the encroachments are in Annexure A to the judgment in proceeding 2024/414626, and are identified as “[A] in the Plan of Easement Encroaching onto Public Road by Mony C Seng dated 18 November 2024 accompanying instrument pursuant s88B of the Conveyancing Act 1919”. An Agreement pursuant to s 34(3) of the LEC Act has been filed, and a judgment will be published on the same day as the judgment in these proceedings.

6. On or about 16 October 2024 Transport for NSW (TfNSW) intervened in these proceedings pursuant to s 64(1) of the LEC Act, and on 19 December 2024 TfNSW withdrew as an Intervenor.

7. The parties agree that it is appropriate for Council to issue the BIC, particularly in view of the fact that similar signage structures have been in place at the St George Hotel for many years prior to the Applicant buying it, and the Applicant has provided the required certifications from qualified experts that the physical structures as built or installed meet applicable engineering standards.

8. Further, the grant of the DA (proceedings No. 2024/334400) will regulate the amenity impacts of the use of the signs, and the encroachments are minor and will be regularised by the judgment to be issued in proceedings No 2024/414626 as set out in par [8(5)] above.

9. 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. I shall uphold the appeal and direct the Council to issue the BIC in accordance with s 8.25(3)(a) of the EPA Act.

10. 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.

11. The Court orders:

1. The appeal is upheld.

2. Within seven (7) days of the date of these Orders, pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue the Building Information Certificate BC-75/2024 dated 3 July 2024 in relation to the eight (8) business identification signs constructed at the St George Hotel, 618 Canterbury Road, Belmore NSW 2192 being the whole of the land in Lot 1 Deposited Plan 125346 and Lot 1 Deposited Plan 917680.

M Peatman

Acting Commissioner of the Court

**********

Decision last updated: 23 January 2025