Daoud v Georges River Council [2022] NSWLEC 1067

Daoud v Georges River Council [2022] NSWLEC 1067

The Court was satisfied that the agreed decision was within power and that the jurisdictional prerequisites were met: the Applicant was entitled to apply and appeal, the walls were development permissible in the R2 zone under Kogarah Local Environmental Plan 2012 as preserved by cl 1.8A of Georges River Local Environment Plan 2021, the Building Information Certificate could apply to the walls as part of the improvements on the site, and the agreed conditions, certifications, neighbour consents and site circumstances addressed Council's concerns. Because the parties' decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be...

Jurisdiction
Australia
Judgment Date
14 February 2022
Procedural Posture
Class 1 Appeal Against Refusal or Failure to Issue a Building Information Certificate / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Respondent directed to issue Building Information Certificate No. 149D2021/0037 subject to conditions in Annexure A.
Legal Topics
['building Information Certificate' 'unauthorised Boundary Walls' 'encroachment' 'height Control' 'conciliation Agreement' 'class 1 Jurisdiction']
['planning and Environment' 'building Regulation' 'local Government'] ['building Information Certificate' 'unauthorised Boundary Walls' 'encroachment' 'height Control' 'conciliation Agreement' 'class 1 Jurisdiction']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal or Failure to Issue a Building Information Certificate / Decision Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Court could direct the Council to issue Building Information Certificate No. 149D2021/0037 for unauthorised blockwork and masonry walls on the side and rear boundaries of 23 Louisa Street, Oatley.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the jurisdictional prerequisites for issuing a Building Information Certificate were satisfied, including permissibility under the applicable planning instrument and the effect of certifications, neighbour consents and agreed conditions.']

Ratio Decidendi

The Court was satisfied that the agreed decision was within power and that the jurisdictional prerequisites were met: the Applicant was entitled to apply and appeal, the walls were development permissible in the R2 zone under Kogarah Local Environmental Plan 2012 as preserved by cl 1.8A of Georges River Local Environment Plan 2021, the Building Information Certificate could apply to the walls as part of the improvements on the site, and the agreed conditions, certifications, neighbour consents and site circumstances addressed Council's concerns. Because the parties' decision was one the Court could have made in the proper exercise of its functions, s 34(3) required the proceedings to be...

Court Disposition

Appeal upheld; Respondent directed to issue Building Information Certificate No. 149D2021/0037 subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'The Respondent is directed to issue a Building Information Certificate No. 149D2021/0037 with respect to the blockwork and masonry walls located on the side and rear boundaries of the land at Lot 15, Section 50, Deposited Plan 5023, known as 23 Louisa Street, Oatley NSW 2223, subject to,...