Hokayem v City of Parramatta Council [2021] NSWLEC 1007

Land and Environment Court New South Wales

Medium Neutral Citation: Hokayem v City of Parramatta Council [2021] NSWLEC 1007 Hearing dates: Conciliation conference on 3 December 2020 Date of orders: 21 January 2021 Decision date: 21 January 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: Proceedings 2018/387699 See order at [15] below Proceedings 2018/387918 See orders at [16] below Proceedings 2019/242510 See orders at [17] below Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – development carried out not in accordance with development consent – development control order – appeal against order – building information certificate application – appeal against refusal to issue building information certificate Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta (former The Hills) Local Environmental Plan 2012 Category: Principal judgment Parties: Dyala Hokayem (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: J McKelvey (Applicant) J Hewitt (Solicitor) (Respondent)

Solicitors: Madison Marcus (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/387699; 2018/387918; 2019/242510 Publication restriction: Nil

Judgment 1. COMMISSIONER: These are three appeals; an appeal against the Parramatta Local Planning Panel's refusal of Modification Application No. 591/2017/A (2018/387699), an appeal against a Development Control Order issued by the City of Parramatta Council (the Council) (2018/387918) and an appeal against the Council's refusal to issue a building information certificate (2019/242510). The appeals relate to land known as 13 Phillip Street, Oatlands (the site). The site contains a three-storey dwelling with a roof top terrace, an inground swimming pool, a retaining wall and a cabana. 2. The Modification Application was lodged on 26 March 2018 pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal against the Parramatta Local Planning Panel's refusal of the Modification Application on 28 June 2018 is made pursuant to s 8.9 of the EPA Act. The Modification Application seeks consent to modify consent DA/55/2015/LD (the development consent) granted by the respondent's predecessor, The Hills Shire Council, on 6 January 2015, for the demolition of the existing dwelling and construction of a three-storey dwelling with a rooftop terrace, inground swimming pool and retaining wall, on the site. The development carried out on the site is not in accordance with the development consent. 3. The applicant was granted leave by the Court on 18 February 2020 to amend the Modification Application to rely on amended plans and documents. 4. The development control order (the order) was issued by the Council on 19 November 2018 pursuant to Div 9.3 and Sch 5 of the EPA Act and the appeal against the order is made pursuant to s 8.18(1) of the EPA Act. In summary, the order requires the applicant to demolish the unauthorised building works carried out contrary to the development consent and to do such works as necessary to comply with the development consent and relevant standards. 5. The appeal against the Council's refusal to issue a building information certificate (BIC) under Div 6.7 of the EPA Act is made pursuant to s 8.25(1) of the EPA Act. The BIC Application No. 161/2018 was lodged on 18 December 2018 and refused by the Council on 13 March 2019. The applicant was granted leave by the Court on 18 February 2020 to amend the application to rely on amended plans and documents. 6. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 December 2020. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the consent authority's function under s 4.55(1A) of the EPA Act to modify the development consent; the Court's power under s 8.18(4)(b) of the EPA Act to modify the development control order; and the Court's power under s 8.25(3) of the EPA Act to make any other order that it considers appropriate in relation to the building information certificate application. There are jurisdictional prerequisites that must be satisfied before the function under s 4.55(1A) of the EPA Act can be exercised.