Fikkers v Wollongong City Council [2021] NSWLEC 1043

Land and Environment Court New South Wales

Medium Neutral Citation: Fikkers v Wollongong City Council [2021] NSWLEC 1043 Hearing dates: Conciliation conference on 2 and 9 December 2020 Date of orders: 25 January 2021 Decision date: 25 January 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – See [12] Catchwords: BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 2009 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Matthew Dominic Fikkers (First Applicant) Rachel Fikkers (Second Applicant) Wollongong City Council (Respondent) Representation: Counsel: O Yeatman (Solicitor) (Applicants) D Loether (Solicitor) (Respondent)

Solicitors: RMB Lawyers (Applicants) Bartier Perry Lawyers (Respondent) File Number(s): 2020/173431 Publication restriction: No

Judgment 1. COMMISSIONER: Matthew and Rachel Fikkers (the Applicants) have appealed the refusal by Wollongong City Council (the Respondent) of their application for a building information certificate (BC_2020/21) which seeks approval of retaining walls within a rear yard (the Proposed Works) of 163 Mount Kiera Road, Mount Kiera (the Subject Site). 2. The Subject Site is zoned R2 Low Density Residential under the provisions of Wollongong Local Environmental Plan 2009, and the Proposed Works are permissible within that land use zone. The application for a building information certificate for the Proposed Works is made with owners' consent. 3. The appeal comes to the Court pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 8.25(3) of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 2 and 9 December 2020, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy), and a site view was undertaken at the commencement of the conciliation conference. 6. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 7. 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. 8. The Parties have advised, and I agree, that there are no jurisdictional prerequisites that must be satisfied in order for the Court to have power to order the issuing of a building information certificate for the Proposed Works and making further orders it considers appropriate under s 8.25(3) of the EP&A Act. 9. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 10. 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. 11. In making the orders to give effect to the agreement between the Parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the Parties. 12. The Court orders that: 1. The Applicants are granted leave to amend the Building Information Certificate Application Number BC-2020/21 to rely upon the following documents prepared by SF Plan & Design and dated 17.12.20: 1. Sheet 05/06 (Site Existing Structures and Proposed Demolition Plan); and 2. Sheet 06/06 (Site Analysis Plan – Proposed New Building Works). 1. The Appeal is upheld. 2. The Applicants are to comply with Condition 16 of Development Application Number 2018/1412 (the Consent) within 4 months of the date of these Orders. 3. The Applicants are to provide certification to the Respondent that the works required by order (3) have been completed in accordance with the Consent within 4 months of the date of these Orders. 4. The Applicants are to provide certification to the Respondent by suitability qualified consultants with respect to the following matters to enable the Building Information Certificates to be issued: 1. Structural – structural engineer certificate to be provided in relation to the adequacy of the works and to certify the ability to cater for further works required pursuant to the Consent. 1. Within 14 days of the Applicants complying with orders (3), (4) and (5) to Council's satisfaction, the Respondent is directed to issue a building information certificate the subject of Building Information Certificate Application Number BC-2020/21. 2. The Applicants are to make the Subject Site available for inspection by the Respondent's authorised officers and consultants within 7 days of compliance with orders (3), (4) and (5).