Bennett v the Council of the City of Sydney trading as City of Sydney Council [2019] NSWLEC 1408

Land and Environment Court New South Wales

Medium Neutral Citation: Bennett v the Council of the City of Sydney trading as City of Sydney Council [2019] NSWLEC 1408 Hearing dates: 28 August 2019 conciliation conference Date of orders: 03 September 2019 Decision date: 03 September 2019 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [9] Catchwords: DEVELOPMENT APPEAL - Building Information Certificate - conciliation conference - agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Kim Leonie Bennett (Applicant) Council of the City of Sydney (Respondent) Representation: Solicitors: Sattler and Associates Pty Ltd (Applicant) Sydney City Council (Respondent) File Number(s): 2019/45676 Publication restriction: No

Judgment 1. COMMISSIONER: Ms Kim Bennett is appealing the refusal of a Building Information Certificate (Certificate), Application No. BC/2018/54, by the Council of the City of Sydney (Council) pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979, to regularise unauthorised works pertaining to Council's Notice of Intention to Issue an Order dated 30 May 2018 and Order dated 25 June 2018 in relation to the construction of a store shed and pergola at No.7 Concord Street, Erskineville (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 was held on 28 August 2019. I presided over the conciliation conference. 3. Prior to 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 granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 March 2019. 4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development by grant of the Certificate subject to agreed conditions annexed to the s 34 agreement. 5. 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. 6. The parties explained to me during the conference that the completed works had been rectified to remove the encroachment on Lot 33 Sec 2 DP 1169 as identified in the Identification Survey by RGM Property Surveys dated 26 July 2018 so as to allow the Court to make the agreed orders at [9]. I am satisfied by reference to the Identification Survey Plan No.180854-003 prepared by RGM Property Surveys, dated 10 March 2019 that the works are now wholly within the site and 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. 7. 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. 8. 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. 9. The Court orders that: 1. The Applicant is granted leave to amend Building Information Certificate Application No. BC/2018/54 to rely upon Identification Survey Plan No. 180854-003 by RGM Property Surveys dated 10 March 2019 2. The Appeal is upheld 3. Within 7 days the Respondent is directed to issue Building Information Certificate Application No. BC/2018/54 relating to the construction of a pergola and shed located between the dwelling and the boundary at 7 Concord Street, Erskineville NSW in accordance with Annexure A. ………………………. Tim Horton Commissioner of the Court Annexure A (137 KB)