Land and Environment Court New South Wales Medium Neutral Citation: Habib v Burwood Council [2022] NSWLEC 1554 Hearing dates: Conciliation conference on 10 October 2022 Date of orders: 10 October 2022 Decision date: 10 October 2022 Jurisdiction: Class 1 Before: Washington AC Decision: Proceedings 2022/150918 The Court orders: (1) The appeal is upheld. (2) The Respondent is to issue, within 7 days of the making of this order, a Building Information Certificate in respect of application no. E22/7720 for the property at 20 Seymour Street, Croydon Park. Proceedings 2022/150919 The Court orders: (1) The appeal is upheld. (2) Development application 2022.6.1, as amended, for the demolition of part of the existing pergola at 20 Seymour Street, Croydon Park, and for use of remaining parts of the said pergola, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Burwood Local Environmental Plan 2012 cll 4.3, 6.1 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.25 Environmental Planning and Assessment Regulations 2000 Environmental Planning and Assessment Regulations 2021 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 Texts Cited: Burwood Council Development Control Plan 2013 Category: Principal judgment Parties: Elbadoui Aziz Habib (Applicant) Burwood Council (Respondent) Representation: Counsel: C Ters (Solicitor) (Applicant) S Shneider (Solicitor) (Respondent) Solicitors: KWL Lawyers (Applicant) Burwood Council (Respondent) File Number(s): 2022/150918 & 2022/150919 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings incorporate two concurrent appeals, both of which pertain to an unauthorised pergola and concrete hardstand to the rear of Lot 12 Section 1 in DP 5412, known as 20 Seymour Street, Croydon Park. The first, 2022/150918, is an appeal against the refusal by Burwood Council to issue a Building Information Certificate for the pergola and associated works (BIC Appeal), under Div 6.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). These proceedings are made pursuant to s 8.25(1) of the EPA Act. 2. The second, 2022/150919, is an appeal against the Council's refusal to grant development consent to the use of said pergola under application DA.2022.6.1 (DA Appeal). These proceedings have been brought under s 8.7 of the EPA Act. 3. The Court arranged joint conciliation conferences where the two matters were heard concurrently. The conference relating to the BIC Appeal was arranged under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) and the conference relating to the DA Appeal arranged under s 34AA of the LEC Act. I presided over the joint conciliation conferences, which were held on 10 October 2022. 4. At the conciliation conferences, the parties reached agreement as to the terms of a decision in both proceedings that would be acceptable to the parties. The decisions involved the Court upholding both appeals to, firstly, order Burwood Council to issue a Building Information Certificate in respect of application E22/7720 and, secondly, granting consent for the development application, as amended, subject to conditions. 5. 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 one that the Court could have made in the proper exercise of its functions. 6. The parties' decision in matter no. 2022/150918 involves the Court exercising the function under s 8.25 of the EPA Act to order Burwood Council to issue a Building Information Certificate. The parties have submitted, and I accept, that there are no jurisdictional prerequisites of relevance in these proceedings. 7. The parties' decision in matter no. 2022/150919 involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application as amended. 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 and explained how each has been satisfied. From this I note the following points. 1. Pursuant to the Burwood Local Environmental Plan 2012 (BLEP), the site is situated within the R2 Low Density Residential Zone. The proposed development is permissible with consent in this zone. 2. The parties submit, and I accept, that there has been adequate regard to the objectives of the R2 zone and the proposed development is consistent with the relevant objectives. 3. The parties submit and I accept that the pergola, at a maximum height of 3.81 metres, complies with the development standard of 8.5m under cl 4.3 of the BLEP and further that the proposed development does not alter the floor space ratio of the site. 4. The parties submit, and I accept that although the site is mapped as Class 5 Acid Sulfate Soils that the proposed development will not lower the water table on any adjacent land and therefore meets the requirements of BLEP cl 6.1. 5. The parties submit, and I accept, that the proposed development is consistent with all relevant controls and objectives of the Burwood Council Development Control Plan 2013 (BDCP), and that these have been adequately considered in the assessment of this application and formation of the parties' agreement. 6. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, the parties submit, and I accept that due to its current and historical residential use, no further assessment of contamination is necessary. 7. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPPBC) applies to the site. Due to the distance of the site from the foreshore and the parties' submissions, I accept that the proposed development is consistent with the aims of the SEPPBC. 8. The parties submit and I accept that, pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, as the estimated construction costs are under $50,000 the proposed development is not considered 'BASIX development' for the purposes of the Environmental Planning and Assessment Regulations 2000. 1. I am satisfied that the parties' decisions are ones that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decisions. Proceedings 2022/150918 1. The Court notes: 1. The Applicant has provided Burwood Council with the following additional information: 1. ABSA Certification dated 9 February 2011; 2. Smoke Alarm Certification prepared by Bakkour Albakkour dated 13 September 2022; 3. Structural Certificate prepared by Burgess Arnott & Grava dated 25 August 2022; 4. Certificate of Structural Adequacy dated 27 September 2022; 5. Sydney Water Application Lodgement Summary dated 28 May 2009; 6. Letter from M. Y. Xu & Co Surveyors & Development Consultants dated 18 April 2009; and 7. External Glazing Compliance Certificate dated 8 January 2010. 1. The Court orders that: 1. The appeal is upheld. 2. The Respondent is to issue, within 7 days of the making of this order, a Building Information Certificate in respect of application no. E22/7720 for the property at 20 Seymour Street, Croydon Park. Proceedings 2022/150919 1. The Court notes: 1. Burwood Council as the relevant consent authority has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application in accordance with the below documentation: 1. Amended plans prepared by SDA Architects: 1. Drawing No.A.01.1, dated 28 July 2022; 2. Drawing No.A.01.2, dated 28 July 2022; 3. Drawing No.A.01.3, dated 28 July 2022; and 4. Drawing No.A.02.1, dated 28 July 2022. 1. Stormwater plans prepared by Capital Engineering Consultants: 1. Drawing No. SW001, Revision A, dated 21 July 2022; and 2. Drawing No. SW010, Revision A, dated 21 July 2022. 1. The Applicant lodged the amended application on the NSW Planning Portal on 10 October 2022 and filed with the Court. 1. The Court orders that: 1. The appeal is upheld. 2. Development application 2022.6.1, as amended, for the demolition of part of the existing pergola at 20 Seymour Street, Croydon Park, and for use of remaining parts of the said pergola, is determined by the grant of consent, subject to the conditions of consent at Annexure A. ………………………. E Washington Acting Commissioner of the Court Proceedings 2022/150919 Annexure A (161581, 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: 12 October 2022