Slashing v Liverpool City Council

[2022] NSWLEC 1418

Land and Environment Court

New South Wales

Medium Neutral Citation:

Slashing v Liverpool City Council [2022] NSWLEC 1418

Hearing dates:

Conciliation conference held on 22 and 29 July 2022

Date of orders:

05 August 2022

Decision date:

05 August 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) An order that pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue Building Information Certificate BC-124/2021 dated 25 June 2021 upon the satisfactory completion of the following:

(a) The lodgement of a development application for:

(i) the change of use of the three separate partitioned areas within the shed the subject of the appeal.

(ii) The strengthening of the two internal dividing walls within the shed

(iii) the widening of the front entry doors and the construction of the three bathrooms within the shed to comply with the Building Code of Australia.

(iv) The construction of a second exit door in the central partitioned area of the shed.

(b) The approval of the Development Application referred to in (a) above.

(c) The issuance of a Construction Certificate for the works referred to in (a) above.

(d) The completion of the works referred to in (i) in accordance with the Construction Certificate referred to in (c) above.

(e) The issuance of a Construction Certificate for the works approved under DA-630/2019 other than for the shed and associated works the subject of the appeal.

(f) Completion of the approved works referred to in (e) in accordance with the Construction Certificate referred to in (e) above.

(g) The issuance of an Occupation Certificate for the completed works.

Catchwords:

BUILDING INFORMATION CERTIFICATE – regularise unauthorised works – additional works

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.25, 6.26, 8.14, 8.25

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

James Slashing (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
C Morten (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant
Sparke Helmore (Respondent)

File Number(s):

2022/98499

Publication restriction:

No

JudgEment

1. COMMISSIONER: This is an appeal against the refusal of Building Information Certificate Application (BIC) No BC-124/2021 by Liverpool City Council (the Council) which seeks to certify unauthorised works, being a shed, on Lot 25 Sec B DP 2566, also known as 145 Exeter Road, Kemps Creek (hereafter the site).

Background

2. The BIC was submitted to Council on 25 June 2021, and after internal assessment was refused by Council, pursuant to s 6.25 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The applicant appealed against the refusal of the BIC, pursuant to s 8.25(1) of the EPA Act.

4. The Court agreed to a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held in person and onsite at the request of the parties.

5. Based on the agreed works and actions by the applicant required prior to the issuance of the BIC, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The decision of the parties is to uphold the appeal and for the Council to issue BIC BC-124/2021, subject to the satisfactory completion of all items described in these orders.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it 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 ss 8.14(1) and 8.25(3) of the EPA Act.

Jurisdictional prerequisites

7. The works and actions required by the applicant and as described in the orders to this judgement are explained to the Court as capable of satisfying the requirements of ss 6.25 and 6.26 of the EPA Act, which will specifically ensure the structural integrity and fire safety of the shed, as constructed.

Grant of consent

8. Based on the agreed actions and works prior to issuance of the BIC, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement, or for the Court in making the orders as sought.

9. The Council has undertaken the appropriate merit assessment of the shed within its structural, environmental and architectural context on the site.

10. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that BIC BC-124/2021 should be issued by Council after the satisfactory completion of the agreed works and actions by the applicant.

11. 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.

Orders

12. The Court orders that:

1. The appeal is upheld.

2. An order that pursuant to s.8.25(3) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue Building Information Certificate BC-124/2021, dated 25 June 2021, upon the satisfactory completion of the following:

1. The lodgement of a development application for:

1. The change of use of the three separate partitioned areas within the shed the subject of the appeal.

2. The strengthening of the two internal dividing walls within the shed.

3. The widening of the front entry doors and the construction of the three bathrooms within the shed to comply with the Building Code of Australia.

4. The construction of a second exit door in the central partitioned area of the shed.

2. The approval of the Development Application referred to in (a) above.

3. The issuance of a Construction Certificate for the works referred to in (a) above.

4. The completion of the works referred to in (a) in accordance with the Construction Certificate referred to in (c) above.

5. The issuance of a Construction Certificate for the works approved under DA-630/2019 other than for the shed and associated works the subject of the appeal.

6. Completion of the approved works referred to in (e) in accordance with the Construction Certificate referred to in (e) above.

7. The issuance of an Occupation Certificate for the completed works.

…………………………

S Bish

Commissioner of the Court

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Decision last updated: 05 August 2022