Land and Environment Court New South Wales Medium Neutral Citation: Davis v Inner West Council [2021] NSWLEC 1453 Hearing dates: Conciliation conference on 29 July 2021 Date of orders: 6 August 2021 Decision date: 06 August 2021 Jurisdiction: Class 1 Before: Dickson C Decision: Refer to orders below at [9] Catchwords: APPEAL – building information certificate -agreement between the parties - orders made. Legislation Cited: Environmental Planning and Assessment Act 1979 s 8.25 Land and Environment Act 1979 s34 Cases Cited: Itaoui v Wollongong City Council [2020] NSWLEC 1260 Category: Principal judgment Parties: Rory Steinle Davis (Applicant) Inner West Council (Respondent) Representation: Counsel: D Briggs (Solicitor) (Applicant) G Christmas (Solicitor) (Respondent) Solicitors: D G Briggs and Associates (Applicant) Apex Law (Respondent) File Number(s): 2021/103171 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the determination of Inner West Council with respect to an application for a building information certificate (BIC) for built works at 57 Phillip Street, Birchgrove (Lot 1 DP 555150). The Council refused to issue a BIC 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 the appeal to the Court by an Applicant who is dissatisfied with the Council's refusal to issue a BIC. 2. The subject property was the subject of substantial storm damage on 9 February 2020. These proceedings were heard concurrently with proceedings number 2021/59582 which seeks development consent for further building works on the site. 3. 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 29 July 2021. I presided over the conciliation conference. 4. 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 an amendment to the BIC, the upholding of the appeal and the making of orders which require the Applicant to undertake certain works, following which the Council is directed to issue a BIC. 5. 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: Itaoui v Wollongong City Council [2020] NSWLEC 1260 at [22]. 2. 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)). 3. 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 BIC. 4. The Court orders: 1. The Applicant is granted leave to amend the Building Information Certificate Application number BC/2021/0011 to reply upon the "BIC Plans" drawings 1-6 prepared by M Knox Design & Carpentry, Rev 1, (collectively the Building Certificate Plans, the coloured elements of which define the scope of the Building Information Certificate application). 2. The appeal is upheld. 3. Within 21 days of the date of this order, the Applicant is to commission and obtain an identification survey from a registered surveyor (Interim Identification Survey). The Interim Identification Survey is to confirm (with the exception of any lawful party wall), the extent of any encroachment of the existing building (as defined in the Building Certificate Plans) over any adjoining boundary at the lower ground floor level, the ground floor level, and the roof. 4. Within 28 days of the date of this order, the Applicant is to serve upon the Council: 1. the Interim Identification Survey; 2. a scope of works detailing the steps to be taken to remove any encroachments identified in the Interim Identification Survey; 3. to provide a detailed scope for the works to be undertaken including the portal frames, floor joists and other works that require fire rating and noise weighting to comply with the BCA; and 4. that the scope of works is shown on sectional detailed plans relying on the survey report. 1. Within 42 days of the date of this order, the Applicant is to carry out such works to the existing building so as to ensure, with the exception of any existing party wall and the lower ground floor masonry wall adjacent to the north-east boundary: 1. remove any and all encroachments of the existing building from adjoining lands; and 2. undertake the required fire rating and noise weighting requirements of the works adjacent the boundaries. 1. Within 84 days of the date of this order, the Applicant is to commission and obtain an identification survey from a registered surveyor confirming - with the exception of any existing party wall and the lower ground floor masonry wall adjacent to the north-east boundary, the existing building stands wholly within the subject land. 2. Within 96 days of the date of this order, the Applicant is to provide to the Respondent: 1. certification from a suitably qualified persons - including a suitably qualified and/or accredited installer of the fire rated system to ensure that the fire rated wall is continuous through the extent of the building required by the BCA from the footings through to the floor/roof framing over the ground floor level and that the works carried out in accordance with order (1) comply with the National Construction Code, relevant standards and are structurally sound for their intended purpose; and 2. the final survey of the building, remedied by works the subject of these orders required by order (4) insofar as they relate to the lower ground floor and ground floor only. 1. Upon compliance with orders (3), (4) and (5), the Applicant is to provide notice in writing to the Respondent to that effect. 2. Within 7 days of notice in writing from the Respondent, the Applicant is to make the property and its dwelling available for inspection by the Respondent's authorised officers. 3. Within 14 days of the Applicant providing notice as required by order (6), the Respondent is directed to issue a building information certificate (NCC-BCA Class 1a) for the building the subject of Building Information Certificate Application number BC/2021/0011 as amended by these orders. 4. Liberty to apply to extend the time for compliance with orders (3), (4) and (5). ………………………… D M Dickson Commissioner of the Court ********** 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: 06 August 2021