Van Mourik v Mosman Municipal Council

[2023] NSWLEC 1647

Land and Environment Court

New South Wales

Medium Neutral Citation:

Van Mourik v Mosman Municipal Council [2023] NSWLEC 1647

Hearing dates:

Conciliation Conference 27 October 2023

Date of orders:

01 November 2023

Decision date:

01 November 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue a building information certificate with respect to the works comprising widened driveway, underground rainwater tank, infill of wall opening to staircase adjacent to western boundary and new structural concrete beam above garage opening at 35 Middle Head Road, Mosman (Lot 2 DP208505) within 10 days of the date of these orders being made by the Court.

Catchwords:

BUILDING INFORMATION CERTIFICATE APPEAL – unauthorised works – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.25, 8.25

Land and Environment Court Act 1979, s 34

Mosman Local Environmental Plan 2012, cl 6.6

Local Government Act 1993

Category:

Principal judgment

Parties:

Grace van Mourik (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
T Messenger (Solicitor)(Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
Messenger & Messenger Solicitors (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/185601

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal to issue a building information certificate (BIC) No 4.2023.7.1 lodged on 27 April 2023 to regularise unauthorised works carried out during the construction of an approved new dwelling house, swimming pool, pool house and landscaping works pursuant to development consent 8.2019.121.1 (the Consent) with the unauthorised works, the subject of the BIC, being described as “driveway, turning circle” and more specifically to includes the following:

1. Installation of a beam/bulk head over the basement garage;

2. Extension of the driveway area;

3. Infill wall to under croft area; and

4. Relocation of the rainwater tank

(the Unauthorised Works) at 35 Middle Head Road, Mosman legally described as Lot 2 in DP208505 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 October 2023. I presided over the conciliation conference.

3. 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 direct the council to issue a BIC pursuant to s 6.25 of the EPA Act.

4. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The parties’ decision involves the Court exercising the function under s 8.25 of the EPA Act to direct the council to issue a BIC.

6. 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 to be the terms of s 6.25 and 8.25 of the EPA Act. The parties explained how the jurisdictional prerequisites have been satisfied.

7. The Court has the power on consideration of an appeal to direct the council to issue a BIC under s 8.25(3)(a) of the EPA Act. In exercising this function, the Court notes that the council has undertaken a hypothetical or notional assessment of the Unauthorised Works and to the extent that jurisdictional prerequisites of that notional development assessment may be relevant the Unauthorised Works, in the context of the Consent, are capable of complying with the landscaping development standard in cl 6.6 of the Mosman Local Environmental Plan 2012 (MLEP).

8. The Court has also had regard to the additional information provided by the Applicant and filed with the Court on 27 October 2023 to address Contention 1 and Part B3 of the Statement of Facts and Contentions filed by the Respondent on 11 July 2023 in relation to:

1. Structural certification all building works relating to the application, including the OSD/Rainwater Tank and Hydraulic engineering certificate for the as-built OSD/Rainwater tank

2. Updated Bushfire Assessment Report to include changes to the development.

9. With the provision of this additional information the parties agree that the jurisdictional requirements for the issue of a BIC under s 6.25 (1) of the EPA Act are satisfied, namely that there is no matter discernible by the exercise of reasonable care and skill that would entitle the Council under the EPA Act or the Local Government Act 1993 to take the actions referred to in s 6.25 (1)(a)(i), (ii) or (iii) of the EPA Act.

10. 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.

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:

1. The appeal is upheld.

2. Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the Respondent is directed to issue a building information certificate with respect to the works comprising widened driveway, underground rainwater tank, infill of wall opening to staircase adjacent to western boundary and new structural concrete beam above garage opening at 35 Middle Head Road, Mosman (Lot 2 DP208505) within 10 days of the date of these orders being made by the Court.

E Espinosa

Commissioner of the Court

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Decision last updated: 01 November 2023