Valoth v Parramatta City Council

[2011] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation:

Valoth & anor v Parramatta City Council [2011] NSWLEC 1184

Hearing dates:

22 June and 6 July 2011

Decision date:

06 July 2011

Jurisdiction:

Class 1

Before:

Moore SC

Decision:

1.The appeal is upheld;

2.The respondent is to provide to the applicant, within 28 days of the date of these orders, a list of the registered proprietors of the upstream properties benefited by the easement for drainage and the address that the council has for each of those registered proprietors for the purposes of correspondence with them;

3.The respondent is directed to issue a building certificate for the whole of the dwelling erected on the applicants' property at the same time that the list in (2) is provided to the applicant;

4.Within 28 days of the receipt of the building certificate and the list of names and addresses of the registered proprietors of the upstream benefited properties, the applicant is to send a letter to each of those registered proprietors (but where two or more of them share the same name and address only one letter is required for those proprietors) that encloses a copy of these reasons for decision;

5.Within 14 days of the dispatch of those letters to the upstream beneficiaries of the easement, the applicant is to file and serve an affidavit establishing compliance with (4); and

6.The exhibits, other than Exhibits 2, A and C, are returned .

Catchwords:

Building certificate application; intrusion into an easement; structural adequacy; notification to beneficiaries of easement of granting of building certificate.

Legislation Cited:

Land Environment Court Act 1979
Environmental Planning and Assessment Act 1979

Category:

Principal judgment

Parties:

R & S Valoth (Applicants)
Parramatta City Council (Respondent)

Representation:

Mr H Robilliard
Robilliard Lawyers (Applicants)
Ms C Rose
Maddocks (Respondent)

File Number(s):

10309 of 2011

EXTEMPORE Judgment

1. Mr and Ms Valoth are the owners of a property which is located downstream on a stormwater drainage easement that benefits a number of properties above them on the slope of in the building development where their home is located. Their home is located at 5 Regiment Grove, Winston Hills and the other beneficiaries of the drainage easement that runs across their property are located up the hill from their house.

1. Mr and Ms Valoth have applied to Parramatta City Council (the council) for a building certificate covering the totality of the residence that is erected on their site. The council has declined to issue such a building certificate because a small portion of the rear of the dwelling intrudes into the drainage easement that incorporates the pipe taking the stormwater away from the twelve upstream properties that have the benefit of that easement.

1. The nature of the intrusion of the dwelling into the drainage easement is a small triangular portion of approximately a quarter of a metre along each of its short sides (sides that at a right angle to each other) and is at the dwelling's south-western corner. The drainage easement itself is some 2.5 m wide at this point.

1. The council had declined to issue the building certificate because the house had not been erected at the location that had been approved as part of the development consent - the development consent requiring the building to be erected entirely clear of the drainage easement.

1. Mr and Ms Valoth have appealed to the Court against the refusal of the council to issue the building certificate and the matter was delegated to me by the Court's Chief Judge to deal with pursuant to s 34AA of the Land Environment Court Act 1979 (the Court Act) - a process that had me, in the first instance, conducting a conciliation conference in an endeavour to assist the parties to reach agreement on the matters in dispute but, if such an agreement were not to be reached, to have me proceed immediately to hear and determine the matter.

1. It was not possible, during the conciliation process, to have the parties reach an agreement that would require me, pursuant to s 34(3) of the Court Act, to order the council to issue the building certificate sought by Mr and Ms Valoth. As a consequence, I proceeded to hear and determine the matter.

1. It seemed to me that, as part of the evidentiary process to enable me to do so in a proper fashion, I had to have some evidence as to the nature of the footings (particularly the piers supporting those footings) in the vicinity of the element of the building that was built into the drainage easement. The council did not contest any other structural or other issues with respect to the remainder of Mr and Ms Valoth's house.

1. As a consequence of that need emerging in the first hearing, I adjourned the matter to enable Mr and Ms Valoth's solicitor, Mr Robilliard, to obtain information from the engineer who had been responsible for supervising the structural aspects of the erection of Mr and Ms Valoth's house.

1. I have now been provided with a letter (Exhibit C) from Mr Patrick Meares, that supervising engineer, and a copy of that letter is reproduced below:

1. Of critical importance, in this letter, is that which is contained in the final paragraphs of the letter. These satisfy me as to two matters. The first is that the legitimisation by the issuing of a building certificate for the dwelling will not in anyway compromise the ability of the upstream beneficiaries of the drainage easement from entering into Mr and Ms Valoth's property for the purposes of carrying out works in that easement (in what would seem to me, from the engineering evidence I heard during the course of the site inspection from both parties, the extremely unlikely event that such works needed to be undertaken).

1. Second, I am satisfied that, if such works were necessary, there would be (in light of Mr Meares' letter) no risk to the structural integrity of Mr and Ms Valoth's dwelling nor would there be any risk to those who were entering into the Valoth property for the purposes of carrying out works within the drainage easement.

1. Under those circumstances, , in my view, having been satisfied as to the structural adequacy of the building and of the lack of risk to those who might need to work in its proximity of the small unapproved corner of its location, there is no basis for me ordering and there is no impediment to me so ordering the issuing of a building certificate to Mr and Ms Valoth.

1. However, as I have discussed with Ms Rose, solicitor for the council, and with Mr Robilliard, it is my view that it is appropriate for me to require that the beneficiaries of the easement be informed of this decision and of the fact that a building certificate is to be issued for that minor intrusion into the draining drainage easement of which they have the benefit.

1. I am satisfied that, pursuant to s 149F(3)(a) of the Environmental Planning and Assessment Act 1979, I not only have the power to order issuing by the respondent of the building certificate but to attach a variety of conditions that are necessary to give effect to the provision of this information to the upstream beneficiaries. Each of the legal representatives has been provided with the opportunity to inform me whether they have any concerns about my power to issue such orders or as to the appropriateness of me doing so in circumstances if I were to have determined (as I have determined) that I should exercise the Court's discretion to order the issue of such a certificate. The matters to which I asked them to turn their attention were my power to require the council to provide to the applicant's legal representative a list of the registered proprietors of the upstream properties benefited by the easement and for me to require the applicant to write to each of those registered proprietors and provide them with a copy of this decision.

1. Neither of the legal representatives questioned either my power to make such orders or the appropriateness of me doing so if I were to exercise my discretion in the fashion that I have determined to be appropriate.

1. As consequence all of the foregoing, I make the following orders:

1.   The appeal is upheld;

2.   The respondent is to provide to the applicant, within 28 days of the date of these orders, a list of the registered proprietors of the upstream properties benefited by the easement for drainage and the address that the council has for each of those registered proprietors for the purposes of correspondence with them;

3.   The respondent is directed to issue a building certificate for the whole of the dwelling erected on the applicants' property at the same time that the list in (2) is provided to the applicant;

4.   Within 28 days of the receipt of the building certificate and the list of names and addresses of the registered proprietors of the upstream benefited properties, the applicant is to send a letter to each of those registered proprietors (but where two or more of them share the same name and address only one letter is required for those proprietors) that encloses a copy of these reasons for decision;

5.   Within 14 days of the dispatch of those letters to the upstream beneficiaries of the easement, the applicant is to file and serve an affidavit establishing compliance with (4); and

6.   The exhibits, other than Exhibits 2, A and C, are returned.

Tim Moore

Senior Commissioner

Decision last updated: 07 July 2011