Yu v Willoughby City Council [2022] NSWLEC 1157 | Case summary

Land and Environment Court (NSW)|2022-03-22

Judgment

COMMISSIONER: The applicants have appealed against a development control order issued by Willoughby City Council (Council) on 14 May 2021. The order relates to an unauthorised garage erected on land legally described as Lot A in DP323772, otherwise known as 16 Johnson Street, Chatswood NSW (site).

Development control order

The order was issued by Council pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The order is a demolish works order, issued pursuant to Order 3 of Pt 1 of Sch 5 of the EPA Act. Council nominated a series of reasons for issuing the order including that Council considers that the building does not meet the requirements for exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, and that there was no record of approval of the garage. The garage was also suggested to be without a front setback to the road reserve and may have encroached on adjoining property.
The applicants appealed to the Court against the Order pursuant to s 8.18 of the EPA Act.

Related building certificate application appeal

By way of background, the applicant had also applied for a building information certificate in regard to the garage. It had also filed an appeal against Council's refusal to issue a building information certificate under s 8.25 of the EPA Act (building information certificate proceedings). These two proceedings had travelled together insofar as their attention in the Court up until the filing of the agreement with respect to the development control order proceedings, and the lodgement of a discontinuance of the building information certificate proceedings.
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 22 March 2022. I presided over the conciliation conference.
During the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed on 22 March 2022. The parties assisted the Court with the provision of a jurisdictional statement to support their agreed conclusion that the decision of the parties is one that the Court can fulfil in the proper exercise of its functions.
The agreement is that the order be modified in the terms set out at Annexure A to this judgement. The agreed works were summarised in the jurisdictional statement as follows: "(a) Demolish the front of the Unauthorised Garage with frontage to Holland Street, remove the front façade in its entirety and shift the garage entry door 6.895 m to the west; (b) Demolish part of the southern wall and roof of the Unauthorised Garage so that the remaining length of southern wall, roof and garage entry door is no closer than 8.39 m from the Holland Street boundary, leaving the two carport posts on the southern extent as shown in the Plans and the roof over the carport no closer than 1500mm from the boundary; (c) Demolish the current partition wall within the Unauthorised Garage, between the car parking area to the east and storage room to the west; (d) Demolish the wet bar presently in the far western extent of the unauthorised garage; (e) Paint the exposed 1500mm length of the northern wall that is shared with 14 Johnson Street in a colour that is consistent with the remaining structures at 16 Johnson Street; and (f) Carry out the concrete wheel strips and grass landscaping works in the road reserve."
The parties also agreed to the following matters which form part of the proposed modified development control order: "(a) The Applicant must ensure compliance with the terms of the Sydney Water Approval (including the carrying out of any work under that approval); and (b) Any concrete wheel strips and grass landscaping works in the road reserve are in accordance with an approval under s 138 of the Roads Act 1993."
In reference to item (a) in par [8] above, it warrants mention here that it had become clear after the order was issued that the garage appeared to be constructed over a Sydney Water asset (sewer line).

Request that the Court note certain matters in regard to the building information certificate proceedings

In the terms of their agreement, the parties have requested the Court note certain matters in regard to the building information certificate proceedings, as follows: "The Court notes that as a result of the Court's decision in Scarf v Shoalhaven City Council [2021] NSWLEC 128 the applicant cannot amend the building information certificate the subject of the proceedings, and that the parties have agreed that the proceedings are to be discontinued, subject to terms relating to a new application for a building information certificate: a) the Applicants will by 15 August 2022 carry out the Garage Amendment Works as set out in the orders for the Development Control Order proceedings; b) the Applicants will by 22 August 2022 apply for a building information certificate that reflects the carrying out of the Garage Amendment Works and: i. meets the requirements of Sydney Water dated 15 March 2022 and is supported by a signed copy of the Sydney Water Deed; ii. reflects the architectural plans prepared by Corona dated June 2021; iii. amends the off street car parking structures as set out at paragraph 3 of the Planning and Heritage Joint Report dated 17 March 2022; iv. provides a survey that the common boundary is located centrally of the cavity brick wall; v. provides amended structural certification acknowledging the filled land running parallel to the southern wall; vi. provides for termite protection of the roof timbers; and vii. provides for a cap or weather seal to the common brick wall when the eastern car parking structure is adjusted c) The Respondent may pursuant to 6.26(2) of the Environmental Planning and Assessment Act require the Applicants to supply it with such information (including building plans, specifications, survey reports and certificates) as may reasonably be necessary to enable the proper determination of the Further BIC Application. d) The Applicants will respond to any request for further information within five business days of receiving the request. e) The Council indicates, but without binding itself, that it expects it will determine the Further BIC Application by 27 September 2022."
These matters are noted.
I further note that in regard to the building information certificate proceedings, the applicants filed a notice of discontinuance at 4.31pm on 22 March 2022. In this notice, certain terms were nominated by the applicant. These terms nominated that the parties agreed to procedural steps consistent with the matters I was requested to note and cited at [10] above.

Request that the Court note certain matters in regard to the development control order proceedings

In the terms of their agreement, the parties have requested the Court note certain matters in regard to the development control order proceedings, as follows: "1 The parties have agreed on the terms of a modified development control order which requires works to be carried out on the premises at 16 Johnson Street Chatswood (Premises), and on the road reserve on Holland Street Chatswood, for which the Council is the appropriate roads authority under the Roads Act 1993 (Road Reserve), in a manner that would resolve the contentions in the proceedings (Garage Amendment Works). 2 The carrying out of the Garage Amendment Works on the Road Reserve requires an approval from the Respondent under section 138 of the Roads Act 1993. 3 The parties agree that: a) the Applicants will apply for an approval pursuant to s138 of the Roads Act to carry out the Garage Amendment Works on the Road Reserve by no later than 1 April 2022; b) the Applicants will carry out the Garage Amendment Works by 15 August 2022, including any works required by any s138 approval."
These matters are noted.

Consideration

Section 8.18(4) of the EPA Act sets out the powers of the Court on appeal as follows: 8.18 Appeals concerning orders …. (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.
The jurisdictional statement of the parties makes clear that there is considerable evidence in support of the modification to the order proposed in the agreement. This principally constitutes an understanding of the position of Sydney Water in regard to its sewer line, and certain expert evidence.
The jurisdictional statement makes clear that in regard to the sewer main, on 15 March 2022, the conditional approval of Sydney Water was issued to the applicant which permits the unauthorised structure (garage) to remain over the Sydney Water asset on the basis the applicant enters into a deed with Sydney Water that requires, amongst other things, that the applicant undertakes certain works as follows: "(a) The 225SGW Sewer is to be relined; and (b) the junction needs to be extended with a PCS outside the garage building envelope with a reconnection to the existing house service line."
In regard to the otherwise merits of the agreed modified order on 16 March 2022, a joint expert report of the town planners and heritage experts was filed in the building information certificate proceedings. This report indicates that if the applicant was to implement the design solution annexed to the report, then all heritage and town planning contentions would be resolved. On 18 March 2022, a similar report (with similar conclusions about the respective contentions) was filed in the subject proceedings.
On 22 March 2022, a joint expert report of the building experts was filed in both the subject (development control order) proceedings and the building information certificate proceedings. This report indicates that if the applicants were to provide certain information and carry out particular works then the unauthorised garage would be capable of regularisation through the issue of a building information certificate on receipt of the proper application.
It is this expert evidence and the advice from Sydney Water that has drawn the parties to the agreement that is before me.
As the presiding Commissioner, and based on this evidence, I am satisfied that the decision to make orders to modify the development control order 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), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order.
Having reached the state of satisfaction that the decision 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)). I therefore make orders in accordance with the agreement of the parties.
The Court orders that: 1. The appeal is upheld. 2. Development Control Order 3376 issued to the Applicants on 14 May 2021 ordering the demolition of works at 16 Johnson Street Chatswood is modified in the terms set out at 'Annexure A' to this agreement.

Amendments 28 March 2022 - par 5 amendment to typographical error in relation to conciliation conference date. 01 April 2022 - par 8 amendment re typographical error (re item reference to par 8) 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: 01 April 2022

Yu v Willoughby City Council

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (1)