JGCo Pty Ltd v Willoughby City Council

Environmental Planning and Assessment Act 1979 4.2 Development that needs consent (cf previous s 76A) (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless - (a such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty - Tier 1 monetary penalty. (2) For the purposes of subsection (1), development consent may be obtained - (a by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3), (4) (Repealed) (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. (6)-(9)(Repealed) Note - Division 4.7 makes provision with respect to State significant development. 6.23 Making of applications for building information certificates (cf previous s 149B) (1) Applications for building information certificates are to be made to the council for the area in which the land to which the application relates is situated. (2) The regulations may provide for the procedure for making and dealing with applications for building information certificates. Note - Division 7.4 enables the regulations to prescribe the fee for an ap plication for a certificate. (3) The regulations may assign an area that is outside a local government area to be part of a specified adjoining local government area in relation to building information certificates. For the purposes of this Division, the assigned area is taken to be a part of the local government area concerned. 8.18 Appeals concerning orders (cf previous s 121ZK) (1) A person who is given a development control order may appeal to the Court against the order. (2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises). (3) The appeal may be made only - a) within 28 days after the development control order is given to the person, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person. (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 8.25 Appeals with respect to building information certificates (cf previous s 149F) (1) An applicant - (a) who is dissatisfied with a council's refusal to issue a building information certificate under Part 6, or (b) who is dissatisfied with a council's failure to issue a building information certificate within the period prescribed by the regulations, or (c) who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate, may appeal to the Court. (2) The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1). (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. Division 9.3 Development control orders 9.34 Orders that may be given (cf previous s 121B) (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Part 1 of Schedule 5, (b) fire safety orders in accordance with the table to Part 2 of Schedule 5, (c) brothel closure orders in accordance with the table to Part 3 of Schedule 5. (2) The regulations may amend those tables. (3) A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate). Note - See also Part 4 of the Building Products (Safety) Act 2017. Order Column 1 Column 2 Column 3 No. To do what? When? To whom? A building - • requiring a planning approval is erected without approval, or 3 Demolish Works Order • requiring approval under the Local Government Act 1993 is erected without approval, or Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building To demolish or remove a building • is or is likely to become a danger to the public, or • is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or • is erected in contravention of this Act. Compliance Order A planning approval has not been complied with. • The owner of the premises 11 To comply with a planning approval for the carrying out of works. Building has been unlawfully erected and does not comply with relevant development standards. • Any person entitled to act on a planning approval, or acting in contravention of a planning approval. To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards. Authorised subdivision works, or works agreed to by the applicant, have not been carried out. The owner of the premises To carry out works associated with subdivision The person required to carry out the works

Part 6 Notices to be given 8 Notice to be given of proposed order to person who will be subject to order (cf previous s 121H(1)-(3)) (1) Before giving a development control order, a relevant enforcement authority must give notice to the person to whom the proposed order is directed of the following - (a) the intention to give the order, (b) the terms of the proposed order, (c) the period proposed to be specified as the period within which the order is to be complied with, (d) that the person to whom the order is proposed to be given may make representations to the relevant enforcement authority as to why the order should not be given or as to the terms of or period for compliance with the order. (2) The notice may provide that the representations are to be made to the relevant enforcement authority or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be to a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date. 9.35 Relevant enforcement authorities who may give orders (cf previous ss 121B, 121C) (1) Development control orders may be given by the following (a relevant enforcement authority) - (a) the Minister or the Planning Secretary, but only in connection with State significant development, State significant infrastructure or any other development for which the Minister, the Planning Secretary or the Independent Planning Commission is or has been the consent authority, (b) a council, 9.37 Failure to comply with order - offence (cf previous s 125) (1) A person to whom a development control order is given or is taken to have been given must comply with the terms of the order. (2) It is a sufficient defence to a prosecution for an offence against this section if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order. Maximum penalty - Tier 1 monetary penalty. Note 1 - For civil enforcement - see Division 9.5. Note 2 - Schedule 5 provides that a development control order that is given to a person binds a successor in title or occupation of the land concerned and is taken to have been given to the successor. Information about outstanding orders can be obtained under this Act by prospective successors.

Environmental Planning and Assessment Regulation 2000 55 What is the procedure for amending a development application? (cf clause 48A of EP&A Regulation 1994) (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. (3) If the development application is for - (a) development for which concurrence is required, as referred to in section 4.13 of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body 280 Application for building information certificate (cf clause 112A of EP&A Regulation 1994) (1) An application for a building information certificate in relation to the whole or a part of a building may be made to the council by - (a) the owner of the building or part or any other person having the owner's consent to make the application, or (b) the purchaser under a contract for the sale of property, which comprises or includes the building or part, or the purchaser's solicitor or agent, or (c) a public authority that has notified the owner of its intention to apply for the certificate. (2) An application must be accompanied by the fee payable under clause 260. (2A) An application must be lodged on the NSW planning portal. (3) Despite subclause (1)(a), the consent in writing of the owner of the building or part is not required if the applicant is a public authority and the public authority has, before making the application, served a copy of the application on the owner.

Land and Environment Court Act 1979 Class 1 - environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following - (d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979, 3 Conciliation conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court - (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. (2) A conciliation conference is to be presided over by a single Commissioner. (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner - (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body - (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) (Repealed) (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

1. After the provision of additional material, and during 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 issue of a modified development control order, the BIC would be similarly modified subject to the Applicant carrying out the works required by the proposed modified development control order.
2. 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 functions as set out below in the jurisdictional prerequisites identified by the parties.

Jurisdictional Prerequisites in relation to the BIC proceedings

1. The BIC is located within the Local Government Area of Willoughby City Council (s 6.23 EPA Act).
2. The owner of the Lot and the collective owners of Strata Plan 96765 have provided their consent to the BIC in accordance with cl 280 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).
3. The BIC was refused by the Council on 21 October 2020, and the Applicant appealed to the Court against the Council's refusal pursuant to s 8.25(1) of the EPA Act. The Court's power on appeal is set out in s 8.25(3): (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.
4. In considering the BIC proceedings, the Court re-exercises the functions of the Council in determining the BIC Application, in accordance with ss 34(3) and 39(2) of the LEC Act, and s 8.25(3) of the EPA Act.
5. During the s 34 conciliation conference the parties agreed to resolve the BIC proceedings on the Applicant carrying out certain works as particularised in the modified DCO set out in Annexure A to the s 34 Orders. Those works are summarised as follows: 1. A new 1.775m high galvanised steel frame wall bolted to the existing roof slab with scyon cladding (to match existing external walls) is to be installed a minimum of 3m from the southern boundary for the length of the roof terrace. The eastern end of the wall is to be 1m in height to match the existing balustrade which takes rakes up at an angle of 45 degrees to match the 1.775m height of the wall/screen; 2. Satu Bumi H Planters (H 600 series) with dimensions of 600mm(w) x 1200mm(l) x 1000mm(h) are to be installed 1000mm from the external face of the eastern parapet wall to the internal (balcony side) face of the planter boxes. The planter boxes must be fixed horizontally with one another and are not to be removed. The planter boxes are to be planted with a mix of the suitable species which are to be nurtured to maturity and are to be in sound healthy condition and true to form for the species and maintained in perpetuity; and 3. The areas to the southern side of the wall in (a) and the eastern side of (b) are to be non-trafficable except for maintenance purposes.
6. The parties agree that orders should be made, pursuant to s 8.25(3)(a) of the EPA Act directing the Council to issue a Building Information Certificate to the Applicant in relation to the: 1. Pergola structure on the southern balcony; 2. Southern extended balcony and its new solid screen wall; and 3. Revised internal Lot layout; for the Lot within 14 days after receipt of notification by the Applicant, if the Council is satisfied the agreed works have been carried out.
7. The parties also agreed that the works are to be carried out by the Applicant by 30 January 2022; or within 14 days of the Applicant entering into a contract for sale of the Lot, whichever first occurs.

Jurisdictional Prerequisites in relation to the DCO proceedings

1. As noted in [8] above the Council issued the Applicant with a Notice of Proposal to Issue the Order in accordance with Division 9, s 9.34 and Schedule 5, Part 1 of the EPA Act, and as also noted in [11] above, the Council issued the Applicant with the Order pursuant to Part 1 of Schedule 5 of the EPA Act.
2. The Applicant appealed to the Court against the DCO pursuant to s 8.18(1) of the EPA Act. Section 8.18(4) gives the Court the following power to hear and dispose of the matter: (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.
3. In considering the DCO proceedings, the Court re-exercises the functions of the Council in determining the DCO in accordance with s 39(2) of the LEC Act, and also has the additional power conferred by s 8.18(4) of the EPA Act.
4. The parties have agreed to resolve the DCO Proceedings based on the Applicant carrying out certain works as specified in the modified DCO attached as Annexure A hereto.
5. The parties also considered whether the obiter by Preston CJ (sitting in the NSW Court of Appeal) in the case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (Dartbrook case) [256], [266] that the Court does not have power to grant leave to amend a modification application pursuant to cl 55 of the EPA Regulation. 'Should the Court, in these cases, query if the Dartbrook analogy is applicable in these cases, the parties agree: 1. "The Applicant is not seeking leave to amend the BIC Application under cl 55 of the EPA Regulation; 2. "Instead the BIC Proceedings and DCO Proceedings are sought to be resolved based on the proposed conditions/modified DCO referenced in the s 34 Agreement, aligned with paras [271] and [327] of Preston CJ's judgment in the Dartbrook case. 3. "Ultimately, ss 8.18(4) and 8.25(3)(a) of the EPA Act provide the Court with much broader powers on appeal than as compared with the Court's powers in respect of modification application appeals pursuant to s 8.9 of the EPA Act, and the agreed approach to resolve the BIC Proceedings and the DCO Proceedings is not prohibited by the Dartbrook case."
6. 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, as set out above by the parties' jurisdictional prerequisites. In particular I note that the detrimental amenity impacts have been addressed as follows: 1. The Applicant had increased its trafficable area of the balcony from 26m2 to approximately 60m2. By the construction of the wall 3m from the southern boundary for the length of the roof terrace; installing planter boxes 1m from the external face of the eastern parapet wall, together with fixed planter boxes 600mm wide on the balcony, the Applicant will substantially reduce the trafficable area on the balcony such: 1. That it will prevent the loss of privacy and overlooking of adjoining properties; particularly Lot 203 in the subject Strata Plan on the level below the Applicant - below the eastern parapet wall, and 128, 126A and 126 Penshurst Street, Willoughby adjacent to its southern boundary. 2. It will no longer adversely impact the redevelopment potential of 128, 126 and 126A Penshurst Street, Willoughby. 3. Its substantial reduction in the trafficable area reduces the potential to cause additional or unreasonable noise impacts on adjoining/adjacent properties by the consequential result that less people are able to be on the balcony. 1. By carrying out the works in the modified DCO, and the subsequent issue of the BIC, the works, being the substance of the dispute before the Court, will no longer be unlawful.
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. The Court orders:
9. In relation to proceedings No. 2020/327199: 1. The appeal is upheld. 2. The Development Control Order issued by the Willoughby City Council to the applicant on 22 October 2020 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the terms of Development Control Order annexed hereto at Annexure A; and 3. The works required under the modified Development Control Order in (2) above must be completed by the time specified in the Development Control Order or such other period as may be agreed to in writing by Willoughby City Council's Planning Manager. 4. The Order dated 4 February 2021 staying the operation of the Development Control Order is set aside.
10. In relation to proceedings No. 2020/327200: 1. The appeal is upheld. 2. Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979 the Applicant is to carry out the following works: 1. Construct a new 1.775m high galvanised steel frame wall bolted to the existing roof slab with scyon cladding (to match existing external walls) a minimum of 3m from the southern boundary for the length of the roof terrace. The eastern end of the wall is to be 1m in height to match the existing balustrade which rakes up at an angle of 45 degrees to match the 1.775m height of the wall; 2. Install six (6) Satu Bumi planters (H 600 series) with dimensions of 600mm(w) x 1200mm(l) x 1000mm(h) to be 1000mm from the external face of the eastern parapet wall to the internal (balcony side) face of the planter boxes. The planter boxes must be fixed horizontally with one another and are not to be removed. The planter boxes are to be planted with a mix of the species identified in Annexure B hereto. The planter boxes are to be filled with soil of maximum density 18KM/m3 to a maximum depth of 500mm. 1. The Applicant or any other person is not to use the southern area between the wall constructed in accordance with paragraph (2)(b) and the existing perimeter walls for any use ancillary to the use of Lot 14 in Strata Plan 96765 for residential purposes including but not limited to the gathering of people, viewing or storage, unless a development consent or modification consent authorises the use of that area for residential purposes. 2. Within 14 days of completing the works, the Applicant is to notify Willoughby City Council in writing that the works referred to in Order (2) have been completed. 3. Upon Willoughby City Council providing notice to the Applicant in writing as to its satisfaction that the Applicant has complied with Order (2) above, pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 Willoughby City Council is directed within 14 days to issue a building information certificate for: 1. The pergola structure on the southern balcony; 2. The southern extended balcony and its new solid wall; and 3. The revised internal lot layout; for Lot 14 in Strata Plan 96765.

Acting Commissioner of the Court Annexure A (123911, pdf) Annexure B (105763, pdf)

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. Decision last updated: 26 July 2021