NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR ZANDRA FORREST V/S KU-RING-GAI COUNCIL CASE

Australia, June 27 -- New South Wales Land and Environment Court issued text of the following judgement on May 27:

1. COMMISSIONER: This is an appeal pursuant to s 8.25(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against Ku-ring-gai Council's (Council) refusal to issue Building Information Certificate No. eEBCU0088/24 on 20 September 2024 (BIC).

2. The BIC relates to Lot 1 in Deposited Plan 24472 known as 5 Kilpa Street, St Ives NSW 2075 (Premises), and it sought to regularise an unauthorised hardstand concrete area situated on subject land.

3. The BIC Application was lodged with Council on or about 16 July 2024 in response to Council issuing a Development Control Order (DCO) for the demolition of the works, the DCO being issued pursuant to s 9.34 and Sch 5, Pt 1 of the EPA Act.

4. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

5. The power or function for the Court to exercise in determining these proceedings is s 8.25(3) of the EPA Act and s 34(3) of the LEC Act.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 and 20 March and 2 May 2025. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the Appeal and directing the Council to issue the BIC. Pursuant to s 34(3) of the LEC EPA Act the parties lodged an Agreement to resolve the proceedings on 8 May 2025.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 8.25(3) of the EPA Act to uphold the appeal and direct the Council to issue the BIC. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied as set out below:

1) Section 6.22(a) of the EPA Act permits an owner of the land on which the building works are erected to apply for a building information certificate.

2) The BIC was lodged with Council pursuant to s 6.23 of the EPA Act on or about 16 July 2024.

3) The BIC was lodged in response to the Council's Notice of Intention to issue the DCO on 3 June 2024 (which was subsequently issued ref EPA0087/24 dated 23 September 2024) for the demolition of works pursuant to s 9.34(1)(a) and Sch 5, Pt 1 Order 3 of the EPA Act.

4) Pursuant to s 6.25(4) of the EPA Act, the Council refused the BIC on 20 September 2024.The Applicant appealed Council's refusal of the BIC on 11 October 2024, pursuant to s 8.25(1) of the EPA Act.

5) The Premises are zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f68ecdf29e22a7a43f9f3)

Disclaimer: Curated by HT Syndication.