Gosling v Penrith City Council [2016] NSWLEC 1288

Land and Environment Court New South Wales

Medium Neutral Citation: Gosling v Penrith City Council [2016] NSWLEC 1288 Hearing dates: 13 May, 8 July 2016 Date of orders: 12 July 2016 Decision date: 12 July 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraph [48] Catchwords: APPEAL – Building Certificate application – unauthorised fence Legislation Cited: Environmental Planning and Assessment Act 1979 Penrith Development Control Plan 2014 Penrith Local Environmental Plan 2010 State Environmental Planning Policy (Exempt and Complying Development) 2008 Cases Cited: First Australasian Holdings Pty Ltd v Poulos [2000] NSWCA 200; Mineral Wealth Ltd v Gosford City Council [2003] NSWLEC 153 Category: Principal judgment Parties: Ty Gosling (Applicant) Penrith City Council (Respondent) Representation: Counsel: Mr Mark Seymour (Applicant) Mr Christopher Drury (solicitor) (Respondent)

Solicitors: Coode & Corry (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 159731 of 2016 (Formerly 2015/10684)

Judgment 1. These proceedings concern an appeal against the Penrith City Council's decision, notified by letter dated 20 July 2015, to refuse the applicant, Ty Gosling's Building Certificate Application BC15/0048, ("Building Certificate Application"). 2. Under the Building Certificate Application, approval is sought to retain the metal panel colourbond fence erected on 41-47 Jolly Street, Castlereagh from the house to the eastern and western sides of the boundaries (the "Site"). 3. The appeal is made by the landowner pursuant to s149F of the Environmental Planning and Assessment Act 1979 (EPA Act). The section provides: 149F Appeals with respect to building certificates (1) An applicant: (a) who is aggrieved by a council's refusal to issue a building certificate, or (b) who is aggrieved by a council's refusal to issue a building certificate within 40 days after: (i) the date of application for the certificate, or (ii) if the applicant receives a notice under section 149C to supply information, the date on which the information is supplied, whichever is the later, or (iii) who receives a notice under section 149C to supply information, may appeal to the Court. (2) The appeal must be made within 12 months after the date on which the refusal is communicated to the person, the date on which the 40-day period expires or the date of the notice under section 149C, as the case requires. (3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 1. This appeal was the subject of a joint conciliation conference under s34 of The Land and Environment Court Act 1979 (the Court Act) involving the applicant's modification appeal in respect of the Site (Proceedings 15/10683). As it happened, the modification appeal was resolved by a s34 agreement. That said, the parities' agreed to allow the evidence in the s34 conference to be evidence where relevant for the purpose of this appeal: s34 (4) (b) of the Court Act. In that regard, the Overland Flooding Report prepared for the s34 conference by Glenn Jameson of Baker Ryan Stewart Pty Ltd was tendered in these proceedings as (Exhibit B). 2. The only other expert evidence filed at the hearing was a report by the Council's Acting Coordinator; Certification and Fire Safety, Craig Squires (Exhibit 3). 3. This appeal commenced onsite when the Council's expert, Mr Squires, gave short oral evidence followed by a view of the fencing on some properties within the immediate area. The enlarged extracts from the street directory showed the properties the Court was taken past in the course of that view (Exhibit D). The Court also received several photographs of these properties.