Jakovljevic v The Hills Shire Council [2022] NSWLEC 1698

Jakovljevic v The Hills Shire Council [2022] NSWLEC 1698

The parties' agreed decision was one the Court could have made in the proper exercise of its functions because the Court had power under s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 to direct issue of a Building Information Certificate, the related demolition order proceedings had been resolved by removal of the unauthorised kitchen facilities and revocation of the order, the remaining unauthorised works were internal to the approved shed/garage use ancillary to the approved dwelling house, the use was permissible, environmental impact was nil or minimal, and structural adequacy of the mezzanine level had been addressed. The Court was therefore required by s 34(3) of...

Jurisdiction
Australia
Judgment Date
15 December 2022
Procedural Posture
Class 1 Development Appeal; Building Information Certificate Appeal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Between the Parties
Outcome
Appeal upheld; Respondent ordered to issue a Building Information Certificate.
Legal Topics
['appeal Against Refusal to Issue Building Information Certificate' 'unauthorised Building Works' 's 34 Conciliation Agreement' 'permissibility of Shed/garage Works Ancillary to Dwelling House' 'structural Adequacy']
['environmental Planning and Assessment' 'land and Environment Court Proceedings' 'building Information Certificates'] ['appeal Against Refusal to Issue Building Information Certificate' 'unauthorised Building Works' 's 34 Conciliation Agreement' 'permissibility of Shed/garage Works Ancillary to Dwelling House' 'structural Adequacy']

Case Brief

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Procedural Posture

Class 1 Development Appeal; Building Information Certificate Appeal / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court could direct the Respondent to issue a Building Information Certificate under s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979.' "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 remaining unauthorised works, after demolition of kitchen facilities, formed part of the approved rural shed/garage use and were permissible.']

Ratio Decidendi

The parties' agreed decision was one the Court could have made in the proper exercise of its functions because the Court had power under s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 to direct issue of a Building Information Certificate, the related demolition order proceedings had been resolved by removal of the unauthorised kitchen facilities and revocation of the order, the remaining unauthorised works were internal to the approved shed/garage use ancillary to the approved dwelling house, the use was permissible, environmental impact was nil or minimal, and structural adequacy of the mezzanine level had been addressed. The Court was therefore required by s 34(3) of...

Court Disposition

Appeal upheld; Respondent ordered to issue a Building Information Certificate.

Orders

  • ['The appeal is upheld.' 'Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 the Respondent is ordered to issue a Building Information Certificate with respect to the unauthorised works comprising the staircase, mezzanine and enclosure to the northern portion of the shed at 2 Deborah...