Kinoshita v Mosman Municipal Council [2023] NSWLEC 1507

Kinoshita v Mosman Municipal Council [2023] NSWLEC 1507

Because the parties reached an agreement that the appeal be upheld and the Council be directed to issue a building information certificate after specified drainage works and engineering certification, and because the jurisdictional prerequisites were satisfied and the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
07 September 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.25 of the Environmental Planning and Assessment Act 1979 Against the Refusal to Issue a Building Information Certificate / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal is upheld and the Respondent is directed to issue a building information certificate after completion and certification of the specified works.
Legal Topics
['building Information Certificate Appeal' 'gabion Retaining Wall' 'drainage Works' 'development Control Order' 'conciliation Conference Orders']
['planning and Environment Law' 'local Government Law'] ['building Information Certificate Appeal' 'gabion Retaining Wall' 'drainage Works' 'development Control Order' 'conciliation Conference Orders']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.25 of the Environmental Planning and Assessment Act 1979 Against the Refusal to Issue a Building Information Certificate / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court could direct the Respondent to issue a building information certificate for the gabion retaining wall under s 8.25(3) of the Environmental Planning and Assessment Act 1979.' "Whether the jurisdictional prerequisites for the exercise of the Court's Class 1 jurisdiction and the issue of a building information certificate were satisfied." "Whether the parties' agreed decision was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

Because the parties reached an agreement that the appeal be upheld and the Council be directed to issue a building information certificate after specified drainage works and engineering certification, and because the jurisdictional prerequisites were satisfied and the agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the agreement.

Court Disposition

The appeal is upheld and the Respondent is directed to issue a building information certificate after completion and certification of the specified works.

Orders

  • ['The appeal is upheld.' 'Within 2 months of the date of these orders, the Applicants are to carry out works in accordance with the plan prepared by Partridge Hydraulic Services, Job No. 2017H0137, Drawing SW 1.1 Revision A dated August 2023, contained at Annexure A.' 'Within 7 days of completion of the Works, the...