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 1. The Applicants are to notify Council within 7 days of the completion of works. The notification must be supported by evidence showing the works required in (2) have been completed. 2. Once (3) has been completed, a staff member from Council shall within 7 days inspect the site to confirm the works have been completed in accordance with the plans. A letter will be sent to the Applicants, within 7 days of the inspection that, Council is satisfied, the works have been satisfactorily completed in accordance with orders (2) and (3). 3. The Applicants are to provide an updated survey plan showing the works, as constructed, in the front setback along the eastern boundary. The detail on the survey including all relevant levels to AHD, is to include the side (eastern) boundary, as it relates to the access stairs and landing adjacent to the driveway. Details are to be to the satisfaction of Council. 4. Once (5) is completed, the survey plan shall be submitted to Council within 7 days. Council will review the documentation. If the works and/or details are not in accordance with the plans, Council will advise you of the areas of concern via a letter within 7 days from the date of receipt of information. Any encroachments over the side boundary will require rectification works to ensure that all encroachments are removed. If there are rectification works to remove encroachments, once completed, the area shall be re-surveyed showing all works within the boundary of 9 Birubi Avenue, Pymble. The updated survey plan is to be submitted to Council. The updated survey plan is to be treated as an amendment to the Building Information Application(s) that is the subject of this Appeal. 5. Once (6) is completed, Council will send a letter confirming the satisfaction of this order within 7 days of the receipt of the information. 6. Pursuant to section 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the Court directs the Council to issue a Building Certificate for application No. Ebcs0039/18 as modified within 7 days of completion of orders (1)-(7). 7. Liberty to apply to the Court is granted to either party to extend the time to comply with any of the orders on giving 2 days notice. ………………………. J Gray Commissioner of the Court Plans (1462173, pdf) ********** Amendments 10 November 2020 - Correction to the cover sheet. 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: 10 November 2020