Land and Environment Court New South Wales Medium Neutral Citation: Kinoshita v Mosman Municipal Council [2023] NSWLEC 1507 Hearing dates: Conciliation Conference 1 September 2023 Date of orders: 07 September 2023 Decision date: 07 September 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Within 2 months of the date of these orders, the Applicants are to carry out works (the Works) in accordance with the plan prepared by Partridge Hydraulic Services, Job No. 2017H0137, Drawing SW 1.1 Revision A dated August 2023, which is contained at Annexure A (the Plan). (3) Within 7 days of the completion of the Works, the Applicants will provide a copy of the following documents to the Respondent: (a) Written certification from a relevant engineering expert that the work was carried out in accordance with the Plan; and (b) Engineering plans which have been certified by the relevant engineering expert referred to in [17(3)(a)]. (4) Within 7 days of notice in writing from the Respondent, the Applicants are to make the parts of the property 15 Little Street, Mosman on which the Works were carried out, available for inspection by the Respondent's authorised officers. (5) The Court directs the Respondent to issue a building information certificate for the building the subject of Building Information Certificate Application number BIC - 15083 lodged on the NSW Planning Portal on 12 April 2023, within 14 days of the date the Respondent receives the information identified at [17](3)] above. Catchwords: APPEAL – building information certificate appeal – gabion retaining wall – drainage – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 6.25, 8.25 Land and Environment Court Act 1979, ss 17, 34 Local Government Act 1993 Cases Cited: Scarf v Shoalhaven City Council [2021] NSWLEC 128 Category: Principal judgment Parties: Eriko Kinoshita (First Applicant) Clive Mayhew-Begg (Second Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: Dr J Smith (Applicants) S Wilson (Solicitor) (Respondent) Solicitors: Swaab (Applicants) HWL Ebsworth (Respondent) File Number(s): 2023/164305 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal to issue a building information certificate (BIC) for a gabion retaining wall constructed at the rear of the property at 15 Little Street, Mosman legally described as Lot A in DP 347728 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 1 September 2023. I 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 appeal and directing the Respondent to issue a BIC. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 5. The parties' decision involves the Court exercising the function under s 8.25(3) of the EPA Act to direct the Council to issue a BIC in such terms and on such conditions as the Court thinks fit. 6. 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 the terms of s 8.25 of the EPA Act. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement from which I have adopted my reasons for being satisfied that the jurisdictional prerequisites have been satisfied. I set out my reasons below. 7. The Court may dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the LEC Act and assumes the role of consent authority. 8. In accordance with s 8.25(3) of the EPA Act, on the hearing of 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. The parties seek an order from the Court to direct the Council to issue a BIC and the parties note that pursuant to s 6.25(1) of the EPA Act, a building information certificate is to be issued by a council only if it appears that: there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993— to order the building to be repaired, demolished, altered, added to or rebuilt, or to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. 1. Prior to the lodgement of the BIC Application, on 19 January 2023, the Respondent issued a development control order (DCO) to the Applicants, requiring the Applicants to demolish the constructed gabion retaining wall, on the basis that, among other things: "The Retaining Wall was constructed without planning approval or a construction certificate circumstances where approval and a construction certificate was required. The Retaining Wall was constructed and without ensuring that any subsoil water was appropriately collected and disposed of to avoid nuisance to adjoining properties (the DCO)." 1. The DCO was the subject of Class 1 proceedings No. 2023/39451, commenced on 6 February 2023 by the Applicants and which were discontinued on 31 August 2023. 2. Notwithstanding that the gabion retaining wall was constructed without consent, the Respondent agrees that in circumstances where works are carried out as agreed and pursuant to the orders below, the Respondent will not take proceedings to enforce the DCO and will not issue a development control order for the Works or an order under the Local Government Act 1993 given that: 1. The parties agree that the constructed gabion retaining wall is otherwise structurally sound and does not propose a danger to the public; 2. The parties agree, on advice from the parties' engineering and hydrology experts, that any hydrological impact of the constructed gabion retaining wall on downstream properties can be appropriately managed through the construction of drainage works in accordance with the plan prepared by Partridge Hydraulic Services, Job No. 2017H0137, Drawing SW 1.1 Revision A dated August 2023; and 3. The parties agree that the constructed gabion retaining wall does not encroach onto land vested in or under the control of the Respondent. 1. In accordance with the decision in Scarf v Shoalhaven City Council [2021] NSWLEC 128, the agreement reached between the parties does not require the amendment of the BIC application and BIC application continues to relate solely to the constructed gabion retaining wall. 2. I am satisfied that the Court can direct the Council to issue the BIC consequent on certain defined works being carried out by the Applicant and appropriate confirmation of those works being provided to Council. 3. I am 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. 4. 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. 5. The Court notes that the parties have agreed for each party is to bear its own costs. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Within 2 months of the date of these orders, the Applicants are to carry out works (the Works) in accordance with the plan prepared by Partridge Hydraulic Services, Job No. 2017H0137, Drawing SW 1.1 Revision A dated August 2023, which is contained at Annexure A (the Plan). 3. Within 7 days of the completion of the Works, the Applicants will provide a copy of the following documents to the Respondent: 1. Written certification from a relevant engineering expert that the work was carried out in accordance with the Plan; and 2. Engineering plans which have been certified by the relevant engineering expert referred to in [17(3)(a)]. 1. Within 7 days of notice in writing from the Respondent, the Applicants are to make the parts of the property 15 Little Street, Mosman on which the Works were carried out, available for inspection by the Respondent's authorised officers. 2. The Court directs the Respondent to issue a building information certificate for the building the subject of Building Information Certificate Application number BIC - 15083 lodged on the NSW Planning Portal on 12 April 2023, within 14 days of the date the Respondent receives the information identified at [17](3)] above. E Espinosa Commissioner of the Court Annexure A ********** 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: 07 September 2023