Kinoshita v Mosman Municipal Council

Judgment (3 paragraphs)

[1]

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal to issue a building information certificate (BIC) for a gabion retaining wall constructed at the rear of the property at 15 Little Street, Mosman legally described as Lot A in DP 347728 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 1 September 2023. I presided over the conciliation conference.
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 Respondent to issue a BIC.
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. 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.
The parties' decision involves the Court exercising the function under s 8.25(3) of the EPA Act to direct the Council to issue a BIC in such terms and on such conditions as the Court thinks fit.
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 to be the terms of s 8.25 of the EPA Act. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement from which I have adopted my reasons for being satisfied that the jurisdictional prerequisites have been satisfied. I set out my reasons below.
The Court may dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the LEC Act and assumes the role of consent authority.

Orders:

The Court orders: 1. The appeal is upheld. 2. Within 2 months of the date of these orders, the Applicants are to carry out works (the Works) in accordance with the plan prepared by Partridge Hydraulic Services, Job No. 2017H0137, Drawing SW 1.1 Revision A dated August 2023, which is contained at Annexure A (the Plan). 3. Within 7 days of the completion of the Works, the Applicants will provide a copy of the following documents to the Respondent: 1. Written certification from a relevant engineering expert that the work was carried out in accordance with the Plan; and 2. Engineering plans which have been certified by the relevant engineering expert referred to in [17(3)(a)]. 1. Within 7 days of notice in writing from the Respondent, the Applicants are to make the parts of the property 15 Little Street, Mosman on which the Works were carried out, available for inspection by the Respondent's authorised officers. 2. The Court directs the Respondent to issue a building information certificate for the building the subject of Building Information Certificate Application number BIC - 15083 lodged on the NSW Planning Portal on 12 April 2023, within 14 days of the date the Respondent receives the information identified at 17] above.

At a glance

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Judgment (3 paragraphs)

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Cases Cited (1)