JGCo Pty Ltd v Willoughby City Council [2021] NSWLEC 1420

Land and Environment Court New South Wales

Medium Neutral Citation: JGCo Pty Ltd v Willoughby City Council [2021] NSWLEC 1420 Hearing dates: Conciliation conference on 13 May 2021, 8 June 2021 and 9 July 2021 Date of orders: 26 July 2021 Decision date: 26 July 2021 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: See orders at [31], [32] and [33] below Catchwords: DEVELOPMENT CONTROL ORDERS – demolish works order – compliance order – building information certificate – conciliation conference – 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 Willoughby Local Environmental Plan 2012 Cases Cited: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 Texts Cited: Willoughby Development Control Plan 2006 Category: Principal judgment Parties: JGCo Pty Ltd (Applicant) Willoughby City Council (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) K Gerathy (Solicitor) (Respondent)

Solicitor: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/327199 and 2020/327200 Publication restriction: No

Judgment 1. COMMISSIONER: The Applicant has appealed against the Development Control Order No. 3327 (DCO) issued by Willoughby City Council (Council) on 22 October 2020 pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 1. The DCO relates to unit 302/72 Laurel Street Willoughby NSW 2068 and is the whole of the land in Lot 14 Strata Plan 96765 (the Lot). The Applicant is the registered proprietor of the Lot. 2. The Applicant's appeal falls under Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 3. The statutory power or function to be exercised in determining the proceedings is s 18(4) of the EPA Act, ss 34(3) and 39 of the LEC Act. 4. The DCO relates to the following works which were carried out otherwise than in accordance with the Development Consent DA 2015/80 (as amended by DA 2015/80A and DA 2015/80/B) (Consent) issued by the Council: 1. The main (southern balcony) of the Lot was extended to the east, south and west which has resulted in an increase to the size of the balcony from 26m2 to approximately 60m2; 2. The internal re-configuration of the Lot which was required to be an adaptable unit pursuant to condition 9 of the Consent; and 3. A pergola structure has also been erected on the southern balcony of the Lot without development consent in breach of s 4.2 of the EPA Act. The pergola structure breaches the height limit of 11m shown on the Height of Buildings Map endorsed by cl 4.3(2) of the Willoughby Local Environmental Plan 2012 (WLEP2012). 1. In proceedings 2020/327200 on 17 November 2020 the Applicant appealed against the Council's refusal on 21 October 2020 to grant a Building Information Certificate (BIC) No. 2020/62 which it had lodged with Council on 9 September 2020. The appeal was filed in Court pursuant to s 8.25(1) of the EPA Act. The BIC relates to the internal layout, external pergola and balcony at 302/72 Laurel Street, Willoughby (the Lot). 1. The Applicant's appeal falls under Class 1 of the Court's jurisdiction pursuant to s 17(d) of the LEC Act. 2. the statutory power or function to be exercised in determining the proceedings is s 8.24(3) of the EPA Act, ss 34(3) and 39 of the LEC Act. 1. On 15 December 2020 the Court ordered, by consent, that the DCO proceedings and the BIC proceedings be heard concurrently as they relate to the same subject matter being the works subject to the DCO and the BIC for use of those same works, and evidence in one is to be evidence in the other. 2. The collective Strata Plan 96765 owners of the Site have provided their consent to the subject BIC Application. 3. The Site is zoned B5 Business Development pursuant to the WLEP2012. 4. On 14 August 2015, Council granted the Consent for the existing commercial building and construction of a 4 storey mixed-use works on the Site. 5. On 15 March 2019 a Final Occupation Certificate was issued in relation to the Consent. 6. On 13 July 2020 the Council issued the Applicant with a Notice of Proposal to Issue a Development Control Order No. 3 (Demolish Works Order) and No. 11 (Compliance Order) pursuant to Division 9.3, s 9.34, Schedule 5, Part 1 of the EPA Act in respect of unauthorised works, including an extended balcony over the roof area, a pergola structure over the northern end of the main balcony, perimeter walls/screens on the western side of the balcony and internal reconfiguration of the Lot. 7. On 9 September 2020 the BIC Application was lodged by the Applicant with Council for the: 1. Extended balcony over the roof area; 2. Pergola structure over the northern end of the main balcony; 3. Perimeter walls/screens on the western side of the balcony; and 4. Internal re-configuration of the Lot. 1. On 21 October 2020 the Respondent refused the BIC Application for 9 separate reasons. 2. On 22 October 2020 the Council issued the DCO. 3. On 17 November 2020 the Applicant commenced both the DCO proceedings and the BIC proceedings with the Court. 4. On 4 February 2021 the Court ordered: 1. By consent that the effect of the DCO including its terms, period for compliance, enforcement for non-compliance or any other action in relation to the DCO, is stayed or otherwise restrained whilst the Applicant remains the registered proprietor of the Lot until the DCO proceedings and the BIC proceedings are finally resolved or discontinued; or until further order of the Court. 2. And Court also noted that the Applicant had provided an undertaking to the Council not to enter into a contract for the sale of the Lot until both of the proceedings are finally resolved or determined. 1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 13 May 2021, 8 June 2021 and 9 July 2021. I presided over the conciliation conference. Following the initial conference on 13 May 2021 the Applicant provided the Council with a suite of additional material.