Kekatos v Ku-ring-gai Council [2020] NSWLEC 1548

Land and Environment Court New South Wales

Medium Neutral Citation: Kekatos v Ku-ring-gai Council [2020] NSWLEC 1548 Hearing dates: Conciliation conference on 21 August and 30 October 2020 Date of orders: 10 November 2020 Decision date: 10 November 2020 Jurisdiction: Class 1 Before: Gray C Decision: Refer to orders below at [7] Catchwords: APPEAL – building information certificate – conciliation conference – agreement between the parties – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Itaoui v Wollongong City Council [2020] NSWLEC 1260 Category: Principal judgment Parties: Jim Kekatos (First Applicant) Marissa Kopoulos (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: N Eastman (Applicants) L Finn (Solicitor) (Respondent)

Solicitors: Kekatos Lawyers (Applicants) Hones Lawyers Pty Ltd (Respondent) File Number(s): 2019/400562 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is an appeal by the applicants against the determination of Ku-ring-gai Council with respect to an application for a building information certificate for built works at 9 Birubi Avenue, Pymble ("the site"). Whilst the application was partially granted, a building information certificate was not issued with respect to the excavation and retaining walls on the site. The Council refused to issue a building information certificate with respect to the retaining wall components, and gave reasons for that refusal. The appeal is lodged pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 ("EPA Act"), which allows an appeal to the Court by an applicant who is dissatisfied with either a refusal of, or a failure to issue, a building information certificate. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached following a conciliation conference. 2. 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 21 August 2020. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for certain works to be carried out by the applicants, following which the Council is directed to issue a building information certificate. 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 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)). 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. I also consider that the grant of liberty to apply is appropriate in circumstances where compliance with the orders could be delayed for a range of reasons out of the control of either party. As I stated in Itaoui v Wollongong City Council [2020] NSWLEC 1260 at [22]: "As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, "In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order." The exercise of liberty to apply requires notice to be given to the other party, usually in the form of a Notice of Motion (see, for example, Owners of Strata Plan 60693 v Anneliese Pty Limited [2006] NSWSC 210 at [8]-[10])." 1. Having reached the state of satisfaction that the decision agreed upon is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the grant of a building information certificate. 3. The Court orders that: 1. The appeal be upheld. 2. Within 28 days, the Applicants shall carry out the following rectification works within the rear yard, as they relate to the rear retaining walls and landscape works, and the stairs to the front of the yard as detailed on the following plans: Plan no. Drawn by Dated Architectural Plans Site Plan – Proposed Amendments – Sheet 02/04 Building Drafting Solutions 19/10/20 Site Plan – As Built & Demolition – Sheet 02A/04 Building Drafting Solutions 19/10/20 Elevations – Sheet 03/04 Building Drafting Solutions 19/10/20 Elevations & Section – Sheet 04/04 Building Drafting Solutions 19/10/20