Simeonov v Willoughby City Council

[2018] NSWLEC 1643

Land and Environment Court

New South Wales

Medium Neutral Citation:

Simeonov v Willoughby City Council [2018] NSWLEC 1643

Hearing dates:

Conciliation conference on 10 December 2018

Date of orders:

12 December 2018

Decision date:

12 December 2018

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

See orders at [9] below

Catchwords:

Building Information Certificate: conciliation conference; agreement between parties; orders

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Irena Simeonov (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)

 

Solicitor:
Swaab (Applicant)

  Other:
B Gaal (Team Leader Certification), Willoughby City Council (Respondent)

File Number(s):

2018/332867

Publication restriction:

No

Judgment

1. This is an appeal under s 8.25(1)(a) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against Willoughby City Council’s refusal to issue a building information certificate under Part 6 of that Act.

2. The applicant had sought a building information certificate seeking to authorise works carried out contrary to a development consent to the roof of one dual occupancy dwelling. These works involved the use of a box gutter which had the consequential effect of the finished roof levels of the dwelling being higher than the levels approved.

3. 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 6 and 7 December 2018. I have presided over the conciliation conference.

4. 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. The decision agreed upon is to uphold the appeal and require the council to issue a building certificate for the works the subject of the application.

5. The agreed Orders are consistent with the provisions of s 8.25(3)(a) of the EP&A Act.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

7. I have formed this state of satisfaction because I accept the position of the council’s officer that the works do not adversely impact on adjoining properties in terms of view loss or overshadowing.

8. 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.

9. The Court orders:

1. The appeal is upheld;

2. The respondent is directed to issue, within 7 days of the date of these orders, a building information certificate in respect of the box gutter and consequential increase in height of the southern dwelling addressing Ulric Lane (excluding NCC Volume 2 matters) at Lot 45 in DP8226E, being 78 Baroona Road, Northbridge as shown in the following Plans:

1. Roof Plan Ulric DA303, Issue B, dated 10 December 2018; and

2. Built Roof Plan A001, Issue A, dated 1 November 2018

copies of which are annexed and marked ‘A’ and ‘B’ respectively.

………………………..

Sue Morris

Acting Commissioner of the Court

Annexure A (663 KB, pdf)

Annexure B (1.11 MB, pdf)

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Decision last updated: 12 December 2018