Grant v Kiama City Council (No 3) [2005] NSWLEC 723

Land and Environment Court of New South Wales

CITATION : Grant v Kiama City Council (No 3) [2005] NSWLEC 723

APPLICANT John Bruce Grant PARTIES : RESPONDENT Kiama City Council

FILE NUMBER(S) : 11655 of 2004

CORAM: Moore C

Appeal :- Refusal of builing certificate application KEY ISSUES: Failure to provide structural certificates .

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 149F(3)

Grant v Kiama Council [2005] NSWLEC 58; CASES CITED: Ireland v Cessnock City Council 110 LGERA 311; .

DATES OF HEARING: 18 and 30 November 2005 EX TEMPORE JUDGMENT DATE : 11/30/2005

APPLICANT Ms L Byrnes, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Thurlow Fisher Solicitors

RESPONDENT Mr P Moggach, solicitor Kearns and Garside

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Moore C

30 November 2005

04/11655 John Bruce Grant v Kiama City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is the final matter in a long-running dispute involving the applicant and Kiama City Council (the council) which has involved a number of sets of proceedings and a number of applications, at least one of which has not needed to involve the Court in its resolution. That un-litigated application was an application for a dwelling on the site at Broughton. 2 With respect to the future proposed development of the site for an expansion of its recreational facilities to be available to the public, a decision was made by me (see Grant v Kiama Council [2005] NSWLEC 58) granting a deferred commencement consent to the applicant. That deferred commencement consent was subject to the applicant constructing the dwelling which had been approved on the site by the council through the application process which did not need the involvement of the Court in its resolution. 3 That dwelling was necessary for the purposes of ensuring that the applicant's indication that he proposed to reside on the site in order to run the enterprise was capable of being fulfilled. The consent for future use of the site was subject to a condition that the person running the business on the site also resided on the site. 4 These proceedings, matter 11655/2004, involve an application for building certificates for a number of structures on the site which are proposed to be used as part of that recreational facility and for which no development consent has been given. 5 Those three structures comprise several brick trampoline pits; a mini golf course and a structure (described as a gazebo) which is a wooden, modestly-elevated structure in the south-eastern corner of the maze area located on the site. 6 When the matter was last before me (on 18 November), after hearing submissions from Ms Byrne, counsel for the applicant, I indicated that, conformably with the decision of Bignold J in Ireland v Cessnock City Council 110 LGERA 311, two tests were required to be satisfied before I could issue any building certificate. The first is that the works had to be structurally sound and, if the works passed such a test, then the proposed use for them had to be assessed as being appropriate and acceptable in a planning sense. I indicated that this second element had been dealt with in my earlier decision [cited at (2) above]. 7 During the course of these hearings and in the related proceedings before the Court, it became obvious that some works were required to be undertaken, at least to the gazebo which was only partially completed, before any structural certificate could be issued for them. 8 I did, however, indicate, as I considered it appropriate to provide fairness to the applicant, that in those earlier finalised proceedings consent was given to permit finalisation of the works in order to enable the structural certificate issues to be considered. 9 On the last occasion when the matter was before me, I indicated that, as I had, in a private capacity, visited the area and driven past the site, which is on the Princes Highway and readily observable from that highway, I had observed that the gazebo appeared to have been completed in that its roof appeared to be entirely in place. 10 As a consequence, I indicated, on the last occasion, that I was prepared to grant the building certificates provided the structural engineer's certificates for each of the three elements were filed. 11 I gave a number of directions concerning that. They comprised (a) a direction that those certificates be filed and served prior to the close of business on Friday 25 November; and (b) that if they were filed and served by that day, I would make orders in Chambers and vacate today's mention and not take any further action in the proceedings. I also indicated that if they were not filed as directed, I would otherwise simply dismiss the appeal. 12 Because of a failure of the Court's electronic document recording system, I have been unable to ascertain, in the last several days, whether those certificates had in fact been filed. I was only able to access that information at half past eight this morning, hence the reason for this morning's mention. 13 The structural engineer's certificates have not been filed by the commencement of this morning's proceedings. 14 Ms Byrne informs me this morning that she had advised her instructing solicitor who had, on her understanding, advised the client, Mr Grant, of the need to file those certificates and she has no knowledge as to why that might not have occurred. 15 In saying this I intend no adverse comment on the conduct of Ms Byrne or her instructing solicitor, Mr Bagley, in these proceedings. 16 However, as a consequence of those structural engineer's certificates not having been filed and there being no cogent reason able to be advanced by Ms Byrne on behalf of her client as to why that has not occurred, I propose to dismiss the appeal (with no order for costs as Mr Moggach, solicitor for the council, indicated that he had no instructions to make an application for an order for costs and did not expect to be so instructed). 17 Therefore the orders of the Court will be, in matter 11655/2004, the application for building certificates pursuant to s 149F(3) of the Environmental Planning and Assessment Act 1979 for a gazebo, mini golf course and trampoline pits on the site at Broughton Vale is dismissed. The exhibits may be returned.