Land and Environment Court New South Wales Medium Neutral Citation: Bonett v Woollahra Municipal Council [2020] NSWLEC 1461 Hearing dates: Conciliation conference on 23 September 2020 Date of orders: 29 September 2020 Decision date: 29 September 2020 Jurisdiction: Class 1 Before: Dickson C Decision: Proceedings 2019/15863 Refer to orders at [12] Proceedings 2018/343459 Refer to orders at [13] Catchwords: APPEAL – building information certificates – structures erected or altered without development consent – conciliation conference – agreement reached DEVELOPMENT APPLICATION – Use of lower ground level – minor alterations and additions – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Local Government Act 1993 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Woollahra Local Environmental Plan 2014 Category: Principal judgment Parties: Shaun Keith Alfred Bonett (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) P Rigg (Respondent) Solicitors: Hones Lawyers (Applicant) Peter R Rigg (Respondent) File Number(s): 2019/15863 2018/343459 Publication restriction: Nil Judgment 1. COMMISSIONER: This decision concerns two appeals that by order of the Court were considered concurrently. The first matter relates to an application for a Building Information Certificate (BIC). This application, BC 46/18, was lodged with Woollahra Council on 4 October 2018. The applicant appeals the failure to issue the BIC pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The second matter [2018/343459] is an appeal under s 8.7(1) of the EPA Act by the Applicant, Mr S Bonett, against the deemed refusal of its development application by Woollahra Municipal Council (the Respondent). The development application, DA/398/2018, sought consent for alterations and additions to the existing dwelling and use of the lower ground floor level. Both appeals relate to 20 The Crescent, Vaucluse. 2. The appeals seek to regularise the works already carried out by the issue of a building information certificate and by obtaining development consent for the prospective uses of the buildings and the works. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development applications pursuant to ss 4.15 and 4.16 of the EPA Act. The Court also has broad powers with respect to the appeals concerning the building information certificates, pursuant to s 8.25(3) of the EPA Act. 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. 1. 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 23 September 2020. I presided over the conciliation conference. 2. At the conciliation conference, the parties reached agreement as to the terms of a decision in both proceedings that would be acceptable to the parties. Proceedings 2019/15863: The Building Information Certificate 1. The outcome of the conciliation is that the parties have reached agreement concerning the BIC application. That agreement is that leave be granted to the Applicant to rely on amended works as executed plans, the upholding of the appeal and that the Court direct Woollahra Council to issue a BIC with respect of the application BC 46/18. 2. As the presiding Commissioner, I am satisfied that the decision to direct the Council to issue building information certificates is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction as these decisions fall within the broad power of the Court set out in 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)). Further: 1. the BIC application was lodged with the consent of the owner of the land to which the development relates: s 6.22 of the EPA Act. 2. I am satisfied that, as now amended, there is no remaining matter discernible by the exercise of reasonable care and skill that would entitle the Council, under this Act or the Local Government Act 1993 to: * order, or to take proceedings to effect, the building to be repaired, demolished, altered, added to or rebuilt; or * to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the Council. Further, as evidenced by the agreement between the parties the Council does not propose to make any such order or take any such proceedings 1. The scope of the BIC is defined by the works as executed plans at order 1, refer paragraph [12]. Proceedings 2018/343459: The Development Application 1. The outcome of the conciliation is that the parties have reached agreement concerning the development application (DA/398/2018). That agreement is that leave be granted to the Applicant to rely on amended architectural plans and additional supporting documents, the appeal is upheld, and the development application is approved subject to conditions. 2. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The development application was lodged with the consent of the owners of the land: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). 2. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. I accept that the likelihood of contamination is low. 3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the subject site as it directly adjoins land with frontage to Sydney Harbour. In determining the development application, I have taken into consideration the matters in Part 3 Division 2 of the instrument as are relevant to the development application. Further if the development is for a purpose covered by Schedule 2 of the instrument I am satisfied that pursuant to cl 29 (3) the requirement for consultation with the Foreshores and Waterways Planning and Development Advisory committee is not required as the development is minor and does not, to any significant extent, increase the scale, size or intensity of use of the boatshed or other facilities. 4. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged. 5. Pursuant to the Woollahra Local Environmental Plan 2014 (LEP 2014) the subject site is zoned R2 Low Density Residential. The proposed development is permissible with consent in the zone. As required by cl 2.3(2) of LEP 2014 I have taken into consideration the objectives of the zone in determining the development application. 6. The development is compliant with the development standards in LEP 2014 for maximum height: cl 4.3. 7. The subject site, the dwelling and its landscape setting, is listed a local heritage item under LEP 2014: Item 394. As required by cl 5.10(4) of LEP 2014 I have given consideration to the potential for the proposed development to impact on the heritage significance of the local heritage item. I am satisfied any impact arising from the development is not sufficient to warrant the refusal of the application. 8. In determining the development application, I have given consideration to the specific impacts of the proposed development listed at cl 6.2(2) of LEP 2014. I accept the agreement of the parties that the proposed works do not meet the definition of earthworks. 9. The parties agree, and I note, that there is no approval for structures encroaching beyond the boundaries of the site. Those structures are to be removed. 10. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. 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. Orders Proceedings 2019/15863: The Building Information Certificate 1. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted to the Applicant to rely on the following as built plans prepared by Vee Chin: 1. Drawing No. A 140, Revision G, dated 10 September 2020; 2. Drawing No. A 241, Revision G, dated 10 September 2020; 3. Drawing No. A 242, Revision D, dated 10 September 2020; 4. Drawing No. A 243, Revision B, dated 26 September 2018; 5. Drawing No. A 441, Revision C, dated 10 September 2020; 6. Drawing No. A 442, Revision D, dated 10 September 2020; and 7. Drawing No. A 443, Revision C, dated 10 September 2020. 1. The appeal is upheld. 2. The Court directs the Respondent to issue, within 7 days of the making of these orders, a Building Information Certificate in respect of application BA 46/2018 for the dwelling known as 20 The Crescent, Vaucluse in respect of the as-built plans prepared by Vee Chin and referred to at order (1) above. 3. Each party to pay their own costs in the proceedings Proceedings 2018/343459: The Development Application 1. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted to the Applicant to rely on the following architectural plans prepared by Vee Chin: 1. Drawing No. A 181, Revision N, dated 19 September 2020; 2. Drawing No. A 183, Revision B, dated 22 July 2020; 3. Drawing No. A 184, Revision C, dated 19 September 2020; 4. Drawing No. A 185, Revision B, dated 21 August 2018; 5. Drawing No. A 281, Revision R, dated 22 September 2020; 6. Drawing No. A 282, Revision H, dated 19 September 2020; 7. Drawing No. A 283, Revision C, dated 12 September 2018; 8. Drawing No. A 385, Revision C, dated 23 July 2020; 9. Drawing No. A 386, Revision C, dated 6 July 2020; 10. Drawing No. 481, Revision D, dated 12 September 2018; 11. Drawing No. 482, Revision O, dated 22 September 2020; and 12. Drawing No. 483, Revision B, dated 21 August 2020. 1. Leave is granted to the Applicant to rely upon the following additional documents: 1. Survey prepared by Hill & Blume Consulting Surveyors, drawing number 60993001C, Revision C, dated 14 July 2020; 2. Concrete test reports issued by Contest Concrete Testing; 3. Report prepared by Partridge Structural Pty Ltd dated 1 July 2020; 4. Report prepared by Jacksons Nature Works dated 2 July 2020; 5. Letter from Martens and Associates dated 24 July 2020; 6. Statement of Design Intent prepared by Partridge Structural Pty Ltd dated 24 July 2020; 7. Structural Engineering Certificate of intersection of new concrete works prepared by Nelson L. Collantes dated 28 July 2020; 8. BASIX certificate no. A387525 dated 24 August 2020; 9. Landscape Plan prepared by Canvas Landscape Architects dated 24 August 2020; 10. Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 30 August 2020; and 11. Letter from Hill & Blume dated 12 September 2020. 1. The appeal is upheld. 2. Development application DA 398/2018 for use of the lower ground level of dwelling and alterations and additions to the dwelling on Lot 18 DP 1078082 known as 20 The Crescent, Vaucluse be determined by the grant of development consent subject to the conditions set out in Annexure A 3. Each party pay their own costs of the proceedings. ………………………… D M Dickson Commissioner of the Court Proceedings 2019/15863 Plans (5377333, pdf) Proceedings 2018/343459 Annexure A (450008, pdf) Plans (2983937, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2020