Williams v Blue Mountains City Council

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Land and Environment Court


of New South Wales


CITATION: Williams v Blue Mountains City Council [2001] NSWLEC 73
PARTIES: APPLICANT
Ralph Douglas Williams
RESPONDENT
Blue Mountains City Council
FILE NUMBER(S): 40159 of 2000
CORAM: Sheahan J
KEY ISSUES: Orders :- declaratory orders and mandamus - "building" or "work" - application for building certificate - characterisation
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1919
CASES CITED: Benz v Blacktown Municipal Council (1971) 25 LGRA 133;
Bowyer v Manly (matter 40305 of 1996, 28 February 1997);
Burwood Council v Russo (40145 of 1994, 14 March 1995);
Cariste Pty Ltd v Blue Mountains City Council (CA 40217/93, 18 December 1996);
Cessnock City Council v Ireland & Anor (matter 40073 of 1998, unreported, 9 October 1998);
City of Parramatta v Brickworks Ltd (1972) 128 CLR 1;
Conomos v Chryssochoides (1997) 97 LGERA 113;
Garbacz & Ors v Morton & Ors (1999) 108 LGERA 251;
Herbert v Warringah Council (1997) 98 LGERA 270;
Ireland v Cessnock City Council (1999) 103 LGERA 285 and [1999] NSWLEC 250;
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302;
Parramatta City Council v Shell Co of Australia Ltd (1972) 1 NSWLR 483;
Reg v Lowe (1954) 19 LGR (NSW) 348;
Stevens v Cleary (40229 of 1997 24 July 1998);
Sutherland Shire Council v Heyman (1985) 157 CLR 424
DATES OF HEARING: 12/02/2001
DATE OF JUDGMENT:
04/19/2001
LEGAL REPRESENTATIVES:
APPLICANT
Barrister
Mr P Clay
Solicitors
Pike Pike & Fenwick
RESPONDENT
Barrister
Mr P Larkin
Solicitors
McPhee Kelshaw


JUDGMENT:





RALPH DOUGLAS WILLIAMS

Applicant

v


BLUE MOUNTAINS CITY COUNCIL

Respondent


JUDGMENT


Introduction

1. These are class 4 proceedings, seeking declarations and an order in the nature of mandamus, but they must be viewed against a complex background.

2. In his class 4 application, filed 18 October 2000, Mr Williams seeks the following declarations and order:


      1. A declaration that the sediment pond and associated works on Lot 7 DP 100095 (sic) is a ‘building’ within the meaning of section 4 of the Environmental Planning and Assessment Act 1979 (‘the Act’).
      2. A declaration that the Applicant’s application for a building certificate pursuant to s149B of the Act, made to the Respondent on or about 16 August, 2000, is an application properly made pursuant to the Act and the regulations to the Act.
      3. An order that the Respondent be directed to accept and process the Applicant’s application for a building certificate for the sediment pond and associated works on Lot 7 DP 1000095 which was lodged with the Respondent on or about 16 August, 2000.

3. Williams and his wife own the subject land, and the sediment pond and associated works to which the application refers (“the pond”) were partially constructed in or by about November 1998 as a substantial (drainage) component of a 17 lot subdivision, allegedly authorised by development consent issued by the Council (DC S97/0005), and an appropriate associated approval under the Local Government Act (“LGA”)…

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Details
Case
[2001] NSWLEC 73
Decision Date

CaseChat Overview and Summary

Williams brought this class 4 proceeding against the Blue Mountains City Council, seeking a declaration that the sediment pond and associated works on Lot 7 DP 100095 is a “building” within the meaning of section 4 of the Environmental Planning and Assessment Act 1979, a declaration that his application for a building certificate was properly made, and an order that the Council process his application. The sediment pond was partially constructed in or by about November 1998 as a substantial drainage component of a 17 lot subdivision, allegedly authorised by development consent issued by the Council (DC S97/0005). The central issue in the case was the correct characterisation of “the pond”. The court held that the sediment pond works were “works” and not “buildings” and dismissed the application with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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