Sinclair v Canterbury-Bankstown Council

[2025] NSWLEC 1479

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sinclair v Canterbury-Bankstown Council [2025] NSWLEC 1479

Hearing dates:

Conciliation conference on 20 May 2025

Date of orders:

08 July 2025

Decision date:

08 July 2025

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, Canterbury-Bankstown Council is directed to issue Building Information Certificate No. BC-55/2023 within 14 days from the date of this judgment in relation to the as built elements which comprise of base walls, concrete slab and ramp on the rear of Lot 1 in Deposited Plan 167557 known as 67 Second Street, Ashbury NSW subject to the attached Structural Certification prepared by Halina Engineers Pty Ltd dated 12 May 2025 at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.5, 6.22, 8.25

Land and Environment Court Act 1979, ss 17, 34

Canterbury-Bankstown Local Environmental Plan 2023

Texts Cited:

NSW Heritage Office, Local Government Heritage Guidelines

Category:

Principal judgment

Parties:

Douglas Elliot Sinclair (First Applicant)
Joanne Maree O’Brien (Second Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
M Bonanno (Solicitor)(Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2024/92795

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicants appeal Canterbury-Bankstown Council’s (Council) refusal on 13 October 2023 to issue Building Information Certificate BC-55/2023 (BIC)(PAN No BIC-16248) for works undertaken to construct built elements which comprise base walls, concrete floor slab and ramp (BIC works) on the rear portion of Lot 1 in Deposited Plan 167557 known as 67 Second Street, Ashbury, NSW (Land).

2. The Land has a frontage of 9.146 metres (m) to Second Street, a secondary frontage being a 39.625m deep western boundary to a publicly accessible land on Lot 2 in Deposited Plan 1186721 and a further secondary frontage being a rear width of 9.146m to a publicly accessible lane on the same lot, Lot 2 Deposited Plan 1186721 (rear lane).

3. The BIC works back onto the rear lane, and the works are a slab with a maximum height of 310mm above the rear lane. As a result of the fall on the Land, the slab sits a minimum of 1.08mm above the rear garden between the slab and the residence.

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 appeal was brought pursuant to s 8.25(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the power or function to be exercised by the Court is pursuant to s 8.25(3) of the EPA Act.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 20 May 2025. 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 directing 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 the function under s 8.25(3)(a) of the EPA Act to uphold the appeal and direct the Council to issue the BIC. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how the jurisdictional prerequisites have been satisfied as set out below:

1. The Applicants are the owners of the Land and authorised to lodge the BIC pursuant to s 6.22(1) of the EPA Act.

2. The Council is the appropriate consent authority pursuant to s 4.5(d) of the EPA Act.

3. The BIC was lodged with Council on 14 August 2023, and Council refused the BIC on 13 October 2023.

4. The Applicants filed their appeal to this Court on 11 March 2024, within the six month period required under s 8.25(2) of the EPA Act.

5. The Land is zoned R2 Low Density Residential pursuant to Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP 2023). Development for the purposes of ancillary development such as garages are permitted with the R2 Low Density Residential Zone, and the objectives of the R2 Zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To allow for certain non-residential uses that are compatible with residential uses and do not adversely affect the living environment or amenity of the area.

• To ensure suitable landscaping in the low density residential environment.

• To minimise and manage traffic and parking impacts.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To promote a high standard of urban design and local amenity.

6. The locality in the R2 Low Density Residential Zone is characterised by small lots generally of the same area and dimensions of the Land. Dwelling houses in the immediate vicinity are predominantly single storey brick and tile roof dwellings. The Land falls within the Wattle Hill Precinct of the Ashbury Conservation Area. The character of the rear lane is dominated by boundary fences with rear access to predominantly brick garages with gabled roof forms, although skillion and hip roof forms are also present with some carports.

7. The Wattle Hill Precinct of the Ashbury Conservation Area is of local heritage significance as an area largely developed by a small number of speculative builders from re-subdivision into the 1920’s, of the original Wattle Hill subdivision offered for sale between 1914 – 1916. The Wattle Hill Precinct is of aesthetic significance for:

1. Its grid pattern of relatively wide east-west streets with some laneways in the southern portion;

2. The uniformity of smaller allotments developed with narrow-fronted 1920’s single storey brick freestanding inter-war California Bungalow style housing.

8. The works within the BIC will not detract from the aesthetic significance of the Wattle Hill Precinct as the allotment size is not being altered, and the slab is adjacent to the rear laneway which is utilised by the adjoining residences for vehicular access to their particular garages or carports. The parties are satisfied that the BIC is consistent with the Heritage Guidelines when the context of the Land is considered, the BIC is consistent with the eclectic mix of garages and rear exits of the residences opening onto this laneway.

9. In relation to the Contentions listed in Council’s Statement of Facts and Contentions filed 12 April 2024, the Council is satisfied that the Contentions have been satisfied because:

1. The rear encroachment has now been resolved.

2. Structural certification has been provided via the Halina Engineers’ Report dated 30 April 2025.

3. Council officers report that the levels are satisfactory, and the ramp within the Land and on Council’s land is satisfactory following engineering certification.

10. The parties agree that the objectives of the R2 Zone are not pre-requisites to the issuing of a building information certificate, however, consideration of them is important and the BIC meets the R2 Zone objectives.

11. The BIC was notified along with DA 948 of 2023 (PAN No 356932) from 18 to 31 August 2023. Two submissions were received. The Council considered the submissions. On 15 May 2025, the Council notified the two objectors by email that further reports and revised plans had been received which satisfied Council’s concerns. The objectors were notified of the hearing commencing onsite at 9.30am on 20 May 2025 and were invited to make oral submissions. I was the presiding officer, and attended the site at 9.30am on 20 May 2025. No objectors appeared.

12. On return to the Court, the parties made application for the Court to consider converting the hearing to a conciliation conference. Pursuant to s 34(1) of the LEC Act, the proceedings were listed for a Conciliation Conference at 2pm on 20 May 2025.

9. For the reasons set out above, 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.

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. I shall uphold the appeal, and direct the Council to issue the BIC pursuant to s 8.25(3) of the EPA Act.

12. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, Canterbury-Bankstown Council is directed to issue Building Information Certificate No. BC-55/2023 within 14 days from the date of this judgment in relation to the as built elements which comprise of base walls, concrete slab and ramp on the rear of Lot 1 in Deposited Plan 167557 known as 67 Second Street, Ashbury NSW subject to the attached Structural Certification prepared by Halina Engineers Pty Ltd dated 12 May 2025 at Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A (559 KB, pdf)

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Decision last updated: 08 July 2025