Forrest v Ku-ring-gai Council

Category: Principal judgment

Parties: Zandra Forrest (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
A Pickup (Solicitor)(Applicant)
C Shaw (Solicitor)(Respondent)
Solicitors:
Pickup Legal (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2024/377052

Publication restriction: No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.25(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against Ku-ring-gai Council’s (Council) refusal to issue Building Information Certificate No. eEBCU0088/24 on 20 September 2024 (BIC).

2. The BIC relates to Lot 1 in Deposited Plan 24472 known as 5 Kilpa Street, St Ives NSW 2075 (Premises), and it sought to regularise an unauthorised hardstand concrete area situated on subject land.

3. The BIC Application was lodged with Council on or about 16 July 2024 in response to Council issuing a Development Control Order (DCO) for the demolition of the works, the DCO being issued pursuant to s 9.34 and Sch 5, Pt 1 of the EPA Act.

4. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

5. The power or function for the Court to exercise in determining these proceedings is s 8.25(3) of the EPA Act and s 34(3) of the LEC Act.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 and 20 March and 2 May 2025. I presided over the conciliation conference.

7. At 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 directing the Council to issue the BIC. Pursuant to s 34(3) of the LEC EPA Act the parties lodged an Agreement to resolve the proceedings on 8 May 2025.

8. 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. The parties’ decision involves the Court exercising the function under s 8.25(3) of the EPA Act to uphold the appeal and direct the Council to issue the BIC. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied as set out below:

9. Section 6.22(a) of the EPA Act permits an owner of the land on which the building works are erected to apply for a building information certificate.

10. The BIC was lodged with Council pursuant to s 6.23 of the EPA Act on or about 16 July 2024.

11. The BIC was lodged in response to the Council’s Notice of Intention to issue the DCO on 3 June 2024 (which was subsequently issued ref EPA0087/24 dated 23 September 2024) for the demolition of works pursuant to s 9.34(1)(a) and Sch 5, Pt 1 Order 3 of the EPA Act.

12. Pursuant to s 6.25(4) of the EPA Act, the Council refused the BIC on 20 September 2024.The Applicant appealed Council’s refusal of the BIC on 11 October 2024, pursuant to s 8.25(1) of the EPA Act.

13. The Premises are zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).

14. Under the Council’s planning controls, the hardstand concrete area would be ancillary to the existing use of the Premises for a dwelling house but would require planning approval. Section 4.2(1) of the EPA Act provides a specified development may not be carried out except with the consent of the relevant planning authority.

15. Section 6.25(1)(a) of the EPA Act instructs a council to issue a building information certificate only if it appears that there is no matter discernible by the exercise of reasonable care and skill that would entitle the council to order the building to be demolished.

16. The parties agree that the hardstand concrete area does not have a planning approval. However, they also agree that it is possible for hardstand concrete area to be regularised by the granting of a BIC by the Council.

17. Section 8.25(3) of the EPA Act gives the Court the following powers:

“(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.”

10. In addition to these proceedings, the Applicant filed an appeal to the DCO which became proceedings No. 2024/377046 (DCO appeal).
11. In the DCO appeal, the parties have agreed to the Court modifying the DCO so that the Applicant is to:

(a) “In accordance with section 4B.1 of Part 4 of Ku-ring-gai Development Control Plan 2015 (KDCP 2015), install wheel stops on the concrete slab/parking space in compliance with section 2.4.5.4 of AS 2890.1 (2004) Off Street Car Parking; (b) In accordance with section 24C.4 of Pt 24 of the KDCP 2015, install a 2000L rainwater tank on the Premises, (c) Within sixty days of the date of this judgment and orders.”

12. Subject to the works as nominated in the DCO appeal being carried out, the Council has agreed it will issue the BIC.
13. Pursuant to s 6. 25(1) of the EPA Act, a BIC is to be issued by the Council only if it appears that:

“(1) A building information certificate is to be issued by a council only if it appears that—

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993**Local Government Act 1993—

(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.”

14. The parties note that:

(a) There is engineering certification for the structural adequacy of the hardstand concrete area. (b) The arborist’s report which states that the concrete hardstand area does not impact any of the existing trees on the Premises. (c) The implementation of the proposed wheel stops addresses the Council’s concerns for the safety of the concrete hardstand area. (d) The installation of the proposed 2000L rainwater tank addresses the Council’s concerns regarding the increased impervious area on the Premises. (e) Following completion of the works in par [14(c) and (d)] there is no basis for Council to issue a further DCO, and the Court can direct the Council to issue the BIC pursuant to s 8.25(3) of the EPA Act.

15. The terms of the decision set out in the parties s 34(3) Agreement dated 8 May 2025 represent a decision the Court can make in the proper exercise of its functions.

16. In accordance with the above, 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.

17. 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.

18. The Court orders:

19. The appeal is upheld.

20. The Respondent is directed to issue a building information certificate for the existing concrete slab and parking area situated in the front yard of land at Lot 1 Deposited Plan 24472 known as 5 Kilpa Place, St Ives within seven (7) days after the date that the Respondent is satisfied of the following matters:

(a) Wheel stops have been installed on the concrete slab/parking space in compliance with Clause 2.4.5.4 of AS 2890.1 (2004) Off Street Car Parking, and (b) A 2000 litre rain water tank designed to retain water for garden irrigation only has been installed on Lot 1 in Deposited Plan 24472.

M Peatman

Acting Commissioner of the Court

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