Vurmeski v Bayside Council; Vurmeski v Bayside Council

[2023] NSWLEC 1673

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vurmeski v Bayside Council; Vurmeski v Bayside Council [2023] NSWLEC 1673

Hearing dates:

Conciliation Conference 23 October 2023

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

Proceedings 2022/335821

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, General Order No 2 Stop Works Order issued by Bayside Council pursuant to s 9.34(1) Schedule 5 Part 1 of the Environmental Planning and Assessment Act 1979 dated 12 October 2022 is revoked.

Proceedings 2023/39160

The Court orders that:

(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 for the building/walls the subject of building information certificate number BC-022/66, being an application to regularise new brick walls to replace structurally unstable existing walls at Lot 334 in Deposited Plan 11398, known as 34 Hollywood Street, Monterey NSW 2217 as indicated on the plans accompanying the said application, within 28 days of the date of these orders.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

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

Legislation Cited:

Bayside Local Environmental Plan 2021

Environmental Planning and Assessment Act 1979, ss 6.22, 6.23, 8.10, 8.11, 8.18, 8.25, 9.34, Sch 5 Pt 1

Land and Environment Court Act 1979, ss 17, 34

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 3.10, 3.11

Texts Cited:

Rockdale Development Control Plan 2011

Category:

Principal judgment

Parties:

Proceedings 2022/335821
Boris Vurmeski (First Applicant)
Aleksander Vurmeski (Second Applicant)
Bayside Council (Respondent)

Proceedings 2023/39160
Boris Vurmeski (First Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
D Loether (Solicitor) (Applicants)
P Brown (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/335821
2023/39160

Publication restriction:

No

Judgment

COMMISSIONER:

1. This judgment deals with the following two appeals:

1. Proceedings 2022/335821 (DCO Proceedings) – an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order, (being a General Order No 2) issued by Bayside Council under s 9.34(1) and Part 1 of Schedule 5 of the EPA Act (DCO) requiring the first and second applicants in the DCO Proceedings to stop all construction work in relation to the construction of a new double storey dwelling and swimming pool at land identified as Lot 334 in Deposited Plan 11398, known as 34 Hollywood Street, Monterey (Site).

2. Proceedings 2023/39160 (BIC Proceedings) – an appeal pursuant to s 8.25(1) of the EPA Act against the deemed refusal of Building Information Certificate (BIC) Application No BC-2022/66 (BIC Application), being an application by the applicant in the BIC Proceedings to regularise new brick walls to replace structurally unstable existing walls at the Site.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. A Complying Development Certificate (No CDC-71557) (CDC) was issued under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) on 21 March 2022 which relevantly purported to approve the “demolition of existing structures and construction of a new double storey dwelling with swimming pool” at the Site.

4. The CDC included “endorsed architectural plans” which required the existing front and side walls of the dwelling (which was otherwise to be demolished) to be retained. The relevant front and side walls were not retained.

5. It was the respondent’s contention that the grant of the CDC was dependent on the applicants’ reliance on an exemption (at cl 3.11) to the minimum setback development standard found at cl 3.10 of the Codes SEPP. By demolishing the existing front and side walls, the exemption at s 3.11 to the standard set out in s 3.10 of the Codes SEPP was no longer available, resulting in a non-compliance with the CDC and a contravention of the EPA Act. The respondent further contended that in the absence of compliance with the cl 3.10 development standard set out in the Codes SEPP, the proposed development should have been assessed by the respondent as a development application rather than a private certifier as complying development under the Codes SEPP.

6. The applicants contended that the front walls had been structurally unsound necessitating their urgent removal. The applicants further contended that they had been replaced in the same location, confirmed via survey, and the purported non compliance with the Codes SEPP did not invalidate the CDC.

7. The DCO was issued by the respondent on 12 October 2022 pursuant to s 9.34(1) and Part 1 of Schedule 5 of the EPA Act.

8. The applicants in the DCO Proceedings commenced Class 1 proceedings on 9 November 2022, being within the time period specified in s 8.18(3) of the EPA Act.

9. On 1 December 2022, the applicant in the BIC Proceedings lodged the BIC Application with the respondent pursuant to ss 6.22 and 6.23 of the EPA Act.

10. On 10 January 2023, the respondent advised the applicant that the CDC was invalid, that a development application would be required and invited the applicant to withdraw the BIC Application.

11. On 6 February 2023, the applicant commenced the BIC Proceedings under s 8.25(1) of the EPA Act in respect of the respondent’s deemed refusal of the BIC Application, being within the time period specified in ss 8.10 and 8.11 of the EPA Act.

12. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 30 May 2023, the matter was listed for hearing. Prior to the hearing, the parties reached agreement and requested that the matters be listed for another s 34 conference. The Court granted this request, and the matters were listed for a s 34 conference on 23 October 2023, following which the hearings were vacated. I presided over the conciliation conference.

13. The agreement reached in the DCO Proceedings is for the DCO to be revoked.

14. The agreement reached in the BIC Proceedings is for the respondent to be directed to issue the BIC the subject of the BIC Application.

DCO Proceedings

15. To make orders in accordance with the parties’ agreement in the DCO Proceedings, I must be satisfied that the decision to make orders revoking the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). 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.

16. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

8.18 Appeals concerning orders (cf previous s 121ZK)

…

(4) On hearing an appeal, the Court may:

(a) revoke the development control order; or

(b) Modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

17. It is clear that the Court has power to revoke a development control order pursuant to s 8.18(4)(a) of the EPA Act.

18. I am satisfied the DCO should be revoked on the basis that:

1. on 19 September 2023, Council approved DA-2023/151 for the “construction of a two (2) storey dwelling and inground pool”, which includes a condition for the applicant to surrender the CDC;

2. on 10 October 2023, Council issued BIC BC-2023/26 to the applicant for the regularisation and reconstruction of the ground floor slab, rear part of the western side wall, external eastern side wall, internal walls and inground swimming pool shell on 10 October 2023; and

3. Council has agreed, in the BIC Proceedings, that it should be directed to issue the BIC the subject of the BIC Application (which essentially relates to the balance of the works carried out on the Site not encompassed by DA-2023/151 or BC-2023/26).

BIC Proceedings

19. To make orders in accordance with the parties’ agreement in the BIC Proceedings, I must be satisfied that the decision to make orders directing the respondent to issue the BIC the subject of the BIC Application is a decision that the Court can make 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.

20. On hearing an appeal in connection with a BIC under s 8.25(1) of the EPA Act, pursuant to s 8.25(3), the Court may do any one or more of the following –

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

2. revoke, alter or confirm a notice to supply information,

3. make any other order that it considers appropriate.

21. I am satisfied that the respondent should be directed to issue the BIC the subject of the BIC Application on the basis that:

1. The applicant is the registered proprietor of the Site upon which the works the subject of the BIC Application were carried out and provided consent to the BIC Application when it was lodged with the respondent.

2. The works the subject of the BIC Application comprise the partial construction of a dwelling house. Dwelling houses are permissible with consent in the R2 Low Density Zone under the Bayside Local Environmental Plan 2021 (BLEP), being the zone in which the Site is located.

3. The BIC Application was notified to surrounding properties by the respondent between 19 December 2022 and 31 January 2023. Numerous objections were received in relation to the development carried out and proposed to be carried out on the Site in purported compliance with the CDC. Three objectors addressed the Court during the s 34 conference on 24 October 2023 raising issues including inappropriate setbacks, bulk and scale and loss of solar access. I accept that the objectors’ submissions have been considered in the assessment of the BIC Application.

4. The BIC the subject of the BIC Application regularises the already built northern and western walls that replaced structurally unstable walls.

5. BC-2023/26 regularises the ground floor slab, rear part of the western side wall, external eastern side wall, internal walls and inground swimming pool shell.

6. DA-2023/151 completes the development for the construction of the dwelling house and pool on the Site.

7. The existing front walls have been demolished and reconstructed with a new footing system compliant with the Building Code of Australia (BCA) and Australian Standards.

8. The Structural Inspection Report prepared by Structability Consulting Engineers dated 11 April 2022 certifies that pursuant to a structural inspection, the front façade wall was constructed of original lime motor which experienced significant deterioration and required reconstruction with a new footing system compliant with AS2870.

9. The Structural Certificate prepared by ABVD Design dated 7 November 2022 certifies that the footings, brickwork off footings and brickwork off ground floor slab comply with the BCA and Australian Standards AS1170-2011, AS3600-2018, AS3700-2009, AS2159-2009 and AS2870-2011.

10. The Termite Control Certificate prepared by Paul Smith dated 29 June 2022 certifies that Subterranean Termite Management Systems are installed at the Site in compliance with AAS3660.

11. I accept the parties’ submission that the Court can be satisfied that the respondent should be directed to issue the BIC the subject of the BIC Application having regard to the relevant provisions of the Rockdale Development Control Plan 2011.

22. 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.

Proceedings 2022/335821

23. The Court notes that each party shall pay its own costs of these proceedings.

24. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, General Order No 2 Stop Works Order issued by Bayside Council pursuant to s 9.34(1) Schedule 5 Part 1 of the Environmental Planning and Assessment Act 1979 dated 12 October 2022 is revoked.

Proceedings 2023/39160

25. The Court notes that each party shall pay its own costs of these proceedings.

26. The Court orders that:

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 for the building/walls the subject of building information certificate number BC‑022/66, being an application to regularise new brick walls to replace structurally unstable existing walls at Lot 334 in Deposited Plan 11398, known as 34 Hollywood Street, Monterey NSW 2217 as indicated on the plans accompanying the said application, within 28 days of the date of these orders.

N Targett

Acting Commissioner of the Court

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Decision last updated: 15 November 2023