Abdul-Rahman v Canterbury-Bankstown Council [2023] NSWLEC 1463

Land and Environment Court New South Wales

Medium Neutral Citation: Abdul-Rahman v Canterbury-Bankstown Council [2023] NSWLEC 1463 Hearing dates: 13-14 June 2023 Date of orders: 17 August 2023 Decision date: 17 August 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: In the 2022/223128 appeal: (1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The appeal is upheld. (3) Development Application No. 115/2022 for the completion of the partially constructed gazebo building for dining for 44 patrons, in association with the existing restaurant (food and drink premises), proposed retaining walls, landscaping, and use of the gazebo building, at 6 Burwood Road, Belfield, is determined by the grant of consent, subject to the conditions of consent at Annexure A. (4) The exhibits, other than Exhibits 1, 2, A and B, are returned. In the 2022/370262 appeal: (1) The appeal is upheld. (2) Pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, the Council is directed to issue a Building Information Certificate 126/2022 with respect to the existing works comprising the concrete footings, concrete floor slab, and brick walls, at 6 Burwood Road, Belfield, within 7 days of the issue of an Occupation Certificate for the completed gazebo building. (3) The exhibits, other than Exhibits 1, 2, A and B, are returned. Catchwords: BUILDING INFORMATION CERTIFICATE AND DEVELOPMENT APPLICATION – gazebo building for patron dining at a restaurant – no onsite car parking – traffic impacts – whether development consent is required for the use of the whole of the site as the Complying Development Certificate authorising the existing restaurant cannot authorise more than 50 seats – whether the Building Information Certificate application is too narrow and would not remedy all unauthorised works at the site – whether the use, capacity and environmental effects of the proposal are uncertain – whether the premises satisfies the requirements of the Building Code of Australia Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979, ss 8.7, 8.15, 8.25, Pt 6 Land and Environment Court Act 1979, s 34 Cases Cited: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270 Ryde Municipal Council v Royal Ryde Homes (1970) 91 WN (NSW) 440; [1970] 1 NSWR 277 Waverley Council v CM Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 Texts Cited: Canterbury Development Control Plan 2012 National Construction Code, Building Code of Australia, 2022 Category: Principal judgment Parties: Omar Abdul-Rahman (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: M Fozzard (Applicant) G Farland (Respondent)