Van Tran v Fairfield City Council

[2020] NSWLEC 1641

Land and Environment Court

New South Wales

Medium Neutral Citation:

Van Tran v Fairfield City Council [2020] NSWLEC 1641

Hearing dates:

Conciliation conference on 2 October 2020 and 22 October 2020

Date of orders:

15 December 2020

Decision date:

15 December 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [11]

Catchwords:

APPEAL – building information certificate – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Giau Van Tran (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
M Van Hoang (Agent) (Applicant)
S Brew (Solicitor) (Respondent)

Solicitors:
Matthews Folbigg Lawyers (Respondent)

File Number(s):

2020/209394

Publication restriction:

No

Judgment

1. COMMISSIONER: Mr Giau Van Tran and his wife (together, the Applicant) appeal the refusal by Fairfield City Council (the Respondent) on 1 July 2020 of a Building Certificate Application No. BC21.1/2020 at 8 Stuart Street, Canley Vale NSW (subject property). The Respondent refused to issue a building information certificate and gave reasons for that refusal. The appeal is lodged pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows an appeal to the Court by an applicant who is dissatisfied with either a refusal of, or a failure to issue, a building information certificate. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached following a conciliation conference.

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 was held on 2 October 2020. I presided over the conciliation conference.

3. At the conciliation conference, an in-principle agreement was reached between the parties under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that was acceptable to the parties.

4. The decision agreed upon was for certain works to be carried out by the applicants, following which the Council is directed to issue a building information certificate. 

5. I adjourned the conciliation conference to permit the Applicant to undertake certain works that were subsequently verified by an inspection conducted by the Respondent and a signed agreement in accordance with s 34(10) of the LEC Act and was filed with the Court on 2 December 2020.

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 form this state of satisfaction as these decisions fall within the power granted to the Court by s 8.25(3) of the EPA Act to “direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit” (at (a)), and “make any other order that it considers appropriate” (at (c)).

8. Section 8.25(3) provides:

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

9. Having reached the state of satisfaction that the decision agreed upon is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the grant of a building information certificate.

11. The Court orders that:

1. The Applicant is granted leave to rely on amended plans and additional information as referred to at Annexure A.

2. No order as to costs.

3. The scope of the Applicant’s application for a Building Information Certificate is amended to include the outbuilding only and not including the existing main residential dwelling at the subject property.

4. The Applicant agreed to and has carried out the following work at the subject property:

1. Landscaping work in accordance with the landscape plan marked ‘4’ at Annexure A;

2. Cap off the shower in the outbuilding;

3. Remove the laundry tub from the outbuilding.

5. The Applicant agrees that the shower which has been capped off will remain not in use.

6. The Respondent is to file and serve a copy of the Building Information Certificate with respect to the outbuilding at the subject property within 7 days from the date when formal orders are made by the Court pursuant to this s34 agreement.

……………………

T Horton

Commissioner of the Court

Annexure A (4166593, pdf)

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