Williams v Blue Mountains City Council - [2001] NSWLEC 73

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

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”)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 73
Decision Date: 04/19/2001

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