Vella v Hunters Hill Council

[2020] NSWLEC 1046

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vella v Hunters Hill Council [2020] NSWLEC 1046
Hearing dates:	Conciliation conference on 28 January 2020
Date of orders:	18 February 2020
Decision date:	18 February 2020
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	See orders at [5] below
Catchwords:	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:	Matt Vella (Applicant) Hunters Hill Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) J Cole (Solicitor) (Respondent) Solicitor: HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/166695
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.25(1)(b) of the Environmental Planning and Assessment Act 1979 against Hunters Hill Council’s deemed refusal of an application for a Building Information Certificate. The application related to certain components of a dwelling house that was the subject to building works for which a Complying Development Certificate had been issued. The works the subject of the application were not in accordance with the works approved under that certificate.

2. In this matter, at the conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. I also note the agreement of the parties that the Applicant will provide to the Principal Certifying Authority evidence of the ground ag line drainage behind the retaining wall to the northern side of the driveway prior to the issue of an Occupation Certificate.

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is granted leave to amend Building Information Certificate Application No. 2018/2002 to rely upon the following amended plans;

1. As Built Site Plan Drawing No. 500 Rev B prepared by Sam Crawford Architects dated 28 January 2020.

2. As Built Detail Plan Drawing No. 501 Rev B prepared by Sam Crawford Architects dated 28 January 2020.

3. As Built Basement Plan Drawing No. 502 Rev B prepared by Sam Crawford Architects dated 28 January 2020.

4. As Built N/E Elevations Drawing No. 503 Rev B prepared by Sam Crawford Architects dated 28 January 2020.

5. As Built S/W Elevations Drawing No. 504 Rev B prepared by Sam Crawford Architects dated 28 January 2020.

For the avoidance of doubt the amended plans add the increase in roof height of 700mm from RL 54.5 to 55.2 to the Building Information Certificate Application (Amended Building Information Certification Application).

2. The Applicant is to re-install the glass louvres in the Southern patio wall that connects the kitchen with the external WC within 7 days.

3. Upon the Council providing notice to the Applicant in writing as to its satisfaction that the Applicant has complied with Order (2) above, the Council is directed, within 14 days, to issue a building information certificate to the Applicant in relation to the Amended Building Information Certificate Application.

……………………….

Sue Morris

Acting Commissioner

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