Scarr v Shoalhaven City Council

Land and Environment Court (NSW)|2021-10-14

Judgment

COMMISSIONER: These two appeals concern an ancillary structure associated with a dwelling house at 25 Sunnymede Lane, Berry. The first appeal (2021/210632) is against the refusal of a development application for the change in use of the existing structure (shed) to detached habitable rooms and associated works (the development appeal). The second appeal (2021/210800) is against the refusal of an application for a building information certificate for the same structure (the building information certificate appeal). The final orders in each of the appeals, outlined in [13]-[14] below, are made as a result of agreements between the parties that were reached following a conciliation conference.
The appeal with respect to the development application is lodged pursuant to s 8.6 of the Environmental Planning and Assessment Act 1979 (EPA Act), and the appeal with respect to the building information certificate is lodged pursuant to s 8.25. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The Court also has broad powers with respect to the appeal concerning the building information certificate, pursuant to s 8.25(3) of the EPA Act. Section 8.25(3) provides: (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.
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 by Microsoft Teams on 24 September and by telephone on 14 October 2021. I presided over the conciliation conference, at which both appeals were dealt with.
Following the conciliation conference, agreements under s 34(3) of the LEC Act were reached between the parties as to the terms of a decision in each of the proceedings that was acceptable to the parties. The final agreements were filed on 15 October 2021 and 26 October 2021 (superseding earlier filed agreements), and agreed jurisdictional notes in support of the agreements were provided by email on 14 October 2021.

The development appeal

The agreement in the development appeal was reached following the lodgement of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended plans show the layout of the barn floor. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

The development is ancillary to, or for the purposes of, a dwelling house, which is a permissible use in in the RU1 Primary Production zone in which the site is located, pursuant to the Shoalhaven Local Environmental Plan 2014 (SLEP).
The development application lodged with the Council was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.
Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land. As the land on which the structure is situated has a history of use for purposes ancillary to a dwelling house, it is unlikely to be contaminated.

The building information certificate appeal

The agreement in the building information certificate appeal requires that the applicants carry out certain works, after which the Council is directed to issue a building information certificate.
I am satisfied that the decision to direct the Council to issue a building information certificate following the carrying out of works is a decision that the Court can make in the proper exercise of its functions. This is because such a decision falls within the broad power of the Court set out in s 8.25(3) of the EPA Act - to "direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit" (at (a)), and "make any other order that it considers appropriate" (at (c)).
The parties have also agreed to a grant of liberty to apply. I consider that the grant of liberty to apply is appropriate in circumstances where compliance with the orders could be delayed due to unforeseen circumstances. As set out in Itaoui v Wollongong City Council [2020] NSWLEC 1260 at [22]: "As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, "In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order." The exercise of liberty to apply requires notice to be given to the other party, usually in the form of a Notice of Motion (see, for example, Owners of Strata Plan 60693 v Anneliese Pty Limited [2006] NSWSC 210 at [8]-[10])."

Final orders

Having reached the state of satisfaction that the decision in each appeal is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties in the development appeal, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

In proceedings 2021/210632:

The Court notes: 1. That the applicants have amended the application with the consent of Shoalhaven City Council. 2. The Respondent lodged the amendments to the development application on the NSW planning portal on 13 October 2021 (reference PAN 155642). 3. The applicants subsequently filed a copy of the amended Development Application No. DA20/1494 on 13 October 2021.
The Court orders that: 1. The appeal is upheld. 2. Development Application Number DA20/1494 for change of use of existing ancillary structure (shed) to detached habitable rooms and associated works at 25 Sunnymede Lane, Berry NSW (Lot 3 DP 713138) is approved subject to the conditions in Annexure "A".

In proceedings 2021/210800:

The Court orders that: 1. The Applicants: 1. Within 3 months from the date these orders are made, must: 1. Rectify the concrete slab on which the Shed at 25 Sunnymede Lane, Berry is located (the Shed) in accordance with the Raft Slab Rectification Plan by Element Consulting Engineers dated 21. 4. 2020 Revision 1; and 2. Carry out the works required by the National Construction Code Assessment Report prepared by J Squared Engineering Pty Ltd dated 4 October 2021 1. Within 20 days of the completion of the required works at order (1)(a) above, the Applicants are to provide the Council with: 1. an updated structural assessment report prepared by a qualified engineer which demonstrates and certifies that the Shed: (a) complies with the approved plans, including the Raft Slab Rectification Plan; and (b) complies with AS 2870. 1. an updated report prepared by a registered certifier which demonstrates and certifies that the Shed: (a) complies with the NCC; and (b) is suitable for use as a Class 1(a) type structure. 1. Following completion of the matters set out in Order 1 above, and within 14 days of the date of receipt of the information provided pursuant to Order 1(b), the Respondent is directed to issue the Building Information Certificate for Application No BC21/1056 dated 9 July 2021 for internal cladding, cabinetry, walls, decks, external openings, and upper floor windows of the Shed at 25 Sunnymede Lane, Berry to the Applicants. 2. The parties have liberty to apply on 3 days' notice.

Commissioner of the Court Proceedings 2021/210632 Annexure A (1222993, 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: 02 November 2021

At a glance

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Judgment (8 paragraphs)

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Cases Cited (3)