Wilkie v Blacktown City Council [2015] NSWLEC 1084

Land and Environment Court New South Wales

Medium Neutral Citation: Wilkie v Blacktown City Council [2015] NSWLEC 1084 Hearing dates: 2 March 2015 Decision date: 26 March 2015 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. DA-14-715 to use an existing structure for a dwelling house at 106 Robert Street, Riverstone is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, A and C. Catchwords: DEVELOPMENT APPLICATION: use of an existing structure for a dwelling house – whether adequate damp proofing provided for human habitation Legislation Cited: Building Code of Australia Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Sophia Wilkie and Martina Srbek (Applicants) Blacktown City Council (Respondent) Representation: Counsel: Mr M Fozzard, barrister (Applicants) Mr P Couch, solicitor (Respondent

Solicitors: - (Applicants) Spark Helmore Lawyers (Respondent) File Number(s): 10535 of 2014

Judgment 1. COMMISSIONER: This appeal relates to DA-14-715 to use an existing structure for a dwelling house at 106 Robert Street, Riverstone (the site). 2. The appeal was subject to mandatory conciliation and arbitration on 21 October 2014, 28 October 2014 and 4 December 2014 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated on 16 December 2014, pursuant to s 34AA(2)(b), and the proceedings dealt with pursuant to s 34AA(2) b)(i) on 2 March 2015 and on the basis of what occurred at the conciliation conferences pursuant to s 34AA(2)(b)(ii). 3. The contentions raised by the council limit the dispute to whether there is adequate evidence that there is sufficient damp proofing under the slab to allow the structure to be used for human habitation. The council maintains that a deferred commencement condition should be placed on any consent to ensure that appropriate treatment is provided to the slab to ensure that moisture does not enter the proposed dwelling. 4. The applicant maintains that a deferred commencement condition is not required as there is no uncertainty about the damp proofing under the slab and that an operative condition is appropriate. 5. The council also raised the absence of any evidence of termite protection however the applicant agreed to provide the necessary details.