Land and Environment Court of New South Wales CITATION : Mardini v Council of the City of Sydney [2007] NSWLEC 266 APPLICANT Janine Maree Mardini PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 10114 of 2007 CORAM: Moore C KEY ISSUES: Building Certificate :- CASES CITED: Ireland v CessnockCity Council (1999) 110 LGERA 311 DATES OF HEARING: 24 April 2007 EX TEMPORE JUDGMENT DATE : 24 April 2007 APPLICANT Mr N Bilinsky, solicitor Kemp Strang LEGAL REPRESENTATIVES: RESPONDENT Ms P Whitford, solicitor Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 24 April 2007 10114 of 2007 Janine Maree Mardini v Council of the City of Sydney This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of a building certificate subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1 COMMISSIONER: The matters that come before me this morning are what purports to be an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) in Matter No 10945 of 2006, being an appeal by Ms Janine Mardini concerning a property at 27 Harold Street, Newtown (the premises). This appeal purports to be against the refusal, by the Council of the City of Sydney (the Council), of Development Application D/2006/837. 2 That appeal was filed on 6 October 2006. The purported development application, against the refusal of which that appeal was taken, was lodged with the Council of the City of Sydney as a consequence of a letter of 4 January 2006 to Ms Janine Mardini from Ms Nada Mardini, the Area Building Manager for the Council for the area within which the premises are located. The two Mss Mardini are not related. 3 The letter inviting the development application invited a development application to be submitted to Council for the unauthorised work and it notes that this request was outlined in the Council's letter dated 10 October 2005 to the applicant's solicitors. However, it is not legally possible for a development application to be lodged for work which has already been undertaken without consent. 4 When I attended the site on 31 January 2007, I pointed out to the legal representatives of the parties in that purported appeal that I considered that the appeal was a nullity and that there was no jurisdiction to deal with the matter. I suggested that, in lieu of ruling to that effect, I adjourn the matter to enable the applicant Ms Mardini, to lodge a building certificate application to enable the matters to be addressed in a form where both the Council and, if necessary, the Court, would have jurisdiction to deal with the matter. 5 I am today also dealing with Matter No 10114 of 2007 which is an appeal pursuant to s 149F of the Act against the refusal by the Council of Building Certificate Application No. BC2005/175. I am satisfied that these proceedings – that is the 2007 proceedings – do found jurisdiction for the Court to deal with the matter. I am satisfied that the 2006 proceedings are a nullity and I have no further regard to them. 6 In the 2007 proceedings, the parties have now reached agreement as to a variety of works which need to be done before the various steps outlined by Bignold J in Ireland v CessnockCity Council (1999) 110 LGERA 311 can be satisfied for the issuing of a building certificate. 7 Ireland postulates a two stage process, the first being certification of the structural and other soundness, in a technical sense, of the works proposed to be given a building certificate and then, once that step has been satisfied, the determination that their proposed use should be permitted. 8 There is no contest in these proceedings that the second of those steps is satisfied and I am also independently so satisfied as a consequence of my inspection of the site on 31 January. 9 A number of rectification works need to be undertaken before the first condition precedent in Ireland can be satisfied. The parties are in agreement as to what works they are and as to the conditions, which should be attached to them. 10 I am satisfied that it is appropriate to determine that, subject to the completion of those works and appropriate certification to the Court and the filing of plans demonstrating the works as executed are in accordance with the conditions, that a building certificate should be issued by the Council and the use permitted of the premises for residential purposes as then altered. 11 The parties have agreed that, having regard to the works to be undertaken and to the applicant's financial circumstances, it would be appropriate to allow a period of four months for those works to be carried out and the conditions satisfied. I see nothing inherently unreasonable based on the affidavit of the applicant, which I have read in these proceedings, for that to be permitted. 12 The consequence is, that subject to the conditions being satisfied and the as-built plans reflecting their satisfaction being filed with the Court, the Court will issue orders in chambers to give effect to this decision. 13 In order to ensure that the matter remains within the Court's control the matter is set down for callover before the Registrar on 26 August 2007 but, if plans as-built and the relevant certification are filed with the Court not less than one week prior to that date, I will make orders in chambers and vacate the callover. 14 In addition, the parties are granted liberty to apply on two days' notice if any matters unexpectedly arise. 15 I therefore give the following directions: 1. The matter is adjourned to callover before the Registrar on 26 August 2007; 2. The respondent is to file the settled conditions electronically in accordance with Practice Direction 2 of 2005 and is to do so by the close of business on Friday 27 April; 3. The applicant is to file and serve plans as-built and the relevant certification not less than one week prior to 26 August 2007; 4. if plans as-built and the relevant certification are filed not less than one week prior to 28 August 2007, I will make orders in chambers and vacate the callover; and 5. The parties are granted liberty to re-list on two days' notice. Tim Moore Commissioner of the Court 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.