Land and Environment Court New South Wales Medium Neutral Citation: Bhargava v Hornsby Shire Council [2021] NSWLEC 1568 Hearing dates: Conciliation conference on 8 September 2021 Date of orders: 28 September 2021 Decision date: 28 September 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: See [9] and [10] of Judgment. Catchwords: DEVELOPMENT CONTROL ORDER APPEAL – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 8.25, 9.34 Land and Environment Court Act 1979, ss 17, 34 Public Health Act 2010, s 7 Category: Principal judgment Parties: Deepak Bhargava (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) M Fozzard (Respondent) Solicitors: Bick & Steele (Applicant) Bilias and Associates (Respondent) File Number(s): 2020/260101 2021/120746 Publication restriction: No Judgment 1. COMMISSIONER: This judgment determines two proceedings which were dealt with together as follows: 1. Class 1 Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against a development control order issued on 10 August 2020 to demolish and remove works (Demolish Works Order) at 4 Hillsborough Court, Cherrybrook, 2126 legally described as Lot 1411 in DP 10023331 (the Site) (DCO Appeal) 2. Class 1 Miscellaneous Appeal pursuant to s 8.25 of the EPA Act being an Appeal against refusal to issue a building information certificate application number BC/17/2021 in relation to works undertaken at the Site (BIC Appeal). 1. The Demolish Works Order was issued by the Respondent pursuant to s 9.34 of the EPA Act following an investigation establishing that unauthorised alterations and additions had been carried out to the approved building at the Site and I presided over a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) of the DCO Appeal on 6 April 2021 which was terminated on the same day. The Applicant's building information certificate application was refused by the Respondent on 20 April 2021. 2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which has been held on 8 September 2021 in relation to the BIC Appeal where the Court had ordered previously for the BIC Appeal and DCO Appeal to travel together. I have presided over the conciliation conference. 3. 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 appeals, modifying the Demolish Works Order and directing the council to issue a building information certificate subject to compliance with the Demolish Works Order. 4. 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 function under s 8.18 of the EPA Act to modify the DCO and s 8.25 of the EPA Act to direct the council to issue the BIC. The Land and Environment Court has jurisdiction to hear and dispose of the two proceedings pursuant to s 17(d) of the LEC Act. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be and the parties explained how the jurisdictional prerequisites have been satisfied as follows: 1. The Land and Environment Court has jurisdiction to hear and dispose of the DCO Appeal and the BIC Appeal pursuant to s 17(d) of the LEC Act. 2. Section 8.18(4)(b) and (f) of the EPA Act provides the Court with the power to modify the development control order or make such other order with respect to the development control order as the Court thinks fit. 3. Section 8.25(3)(a) and (c) of the EPA Act provides the Court with the power to direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit and to make any other order that it considers appropriate. 1. I am accordingly 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. 2. 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. Orders 1. In relation to the DCO Appeal proceedings 2020/260101, the Court orders: 1. The appeal is upheld. 2. The Order made and given on 10 August 2020 is modified by deleting terms 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.9, 1.10 and inserting the following new terms: "1.1 Within one hundred and twenty (120) days of the date of these orders, the applicant is to: (a) carry out the remedial works specified in Schedule 1 of these Orders; and (b) provide the following certification to the respondent: a structural engineer's certificate from a suitably qualified person that Sunroom 1, Sunroom 3, the water feature, the prayer room and the decking around the spa are structurally adequate; a certificate from a suitably qualified person that Sunroom 3 complies with the Performance Requirements or DTS provisions of the Building Code of Australia in relation to ceiling height; a certificate from a licenced builder confirming that the works in Schedule 1 have been carried out; a certificate or compliance report from a suitably qualified person in respect of the following aspects of the development: (a) the stormwater disposal system including surface and subsurface waters meet the requirements of the Building Code of Australia; (b) termite protection but only in relation to Sunroom 2 and Sunroom 3; (c) electrical services and connections but only in relation to Sunroom 2 and Sunroom 3; (d) swimming pool fencing around the spa; a compliance report that there are no encroachments over any Sydney Water asset, or that Sydney Water have no objection to any such encroachment; (c) notify the respondent that it has complied with Order 2(a)-(b) above. (d) Subject to any restrictions contained in any NSW Government Public Heath Orders issued under section 7 of the Public Health Act 2010, 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." 1. The parties are to pay their own costs of the proceedings. 2. The applicant is granted liberty to restore on 2 days' notice if it is unable to comply with the time specified in Order 2 above to carry out the remedial works, including by reason of any NSW Government Public Heath Orders issued under section 7 of the Public Health Act 2010. 1. In relation to the BIC Appeal proceedings 2021/120746, the Court orders: 1. The appeal in proceedings 21/120746 is upheld. 2. Within one hundred and twenty (120) days of the date of these Orders, the applicant must: 1. carry out the remedial works specified in Schedule 1 of these Orders; and 2. provide the following certification to the respondent: 1. a structural engineer's certificate from a suitably qualified person that Sunroom 1, Sunroom 3, the water feature, the prayer room and the decking around the spa are structurally adequate; 2. a certificate from a suitably qualified person that Sunroom 3 complies with the Performance Requirements or DTS provisions of the Building Code of Australia in relation to ceiling height; 3. a certificate from a licenced builder confirming that the works in Schedule 1 have been carried out; 4. a certificate or compliance report from a suitably qualified person in respect of the following aspects of the development: a. the stormwater disposal system including surface and subsurface waters meets the requirements of the Building Code of Australia; b. termite protection but only in relation to Sunroom 2 and Sunroom 3; c. electrical services and connections but only in relation to Sunroom 2 and Sunroom 3; d. swimming pool fencing around the spa; 1. a compliance report that there are no encroachments over any Sydney Water asset, or that Sydney Water have no objection to any such encroachment; 1. notify the respondent that it has complied with Order 2(a)-(b) above. 2. Subject to any restrictions contained in any NSW Government Public Heath Orders issued under section 7 of the Public Health Act 2010, 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. 1. Within seven (7) days of the applicant providing notice to the respondent in accordance with Order 2(c), the respondent is directed to issue Building Information Certificate No. BC/17/2021 pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979. 2. The parties are to pay their own costs of the proceedings. 3. The applicant is granted liberty to restore on 2 days' notice if it is unable to comply with the time specified in Order 2 above to carry out the remedial works including by reason of any NSW Government Public Heath Orders issued under section 7 of the Public Health Act 2010. ………………………. E Espinosa Commissioner of the Court Schedule 1 (102658, pdf) Schedule 2 (93792, pdf) Plans (2824232, pdf) DCO (8608223, pdf) ********** 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: 28 September 2021