Alam v Burwood Council

[2023] NSWLEC 1180

Land and Environment Court

New South Wales

Medium Neutral Citation:

Alam v Burwood Council [2023] NSWLEC 1180

Hearing dates:

Conciliation conference on 17 November 2023

Date of orders:

28 November 2023

Decision date:

28 November 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order, General Order No 10, issued to the Applicant on 27 April 2023 by the Respondent in relation to 48 Fitzroy Street, Burwood, as set out at Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER – GENERAL ORDER – RESTORE WORKS ORDER – conciliation conference – agreement between the parties –modification of order

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34

Land and Environment Court Act 1979, s 34

Burwood Local Environmental Plan 2012, Sch 5 Pt 1

Category:

Principal judgment

Parties:

Radwan Alam (Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
K Marginson (Solicitor)(Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Houston Dearn O’Connor Lawyers (Respondent)

File Number(s):

2023/166071

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a Development Control Order – General Order – No 10 Restore Works Order (the Order) issued to Radwan Alam (the Applicant) by Burwood Council (the Respondent) on 27 April 2023 in relation to property at 48 Fitzroy Street, Burwood (the site).

2. 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 17 November 2023. I presided over the conciliation conference.

3. 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. The agreement involves the Court upholding the appeal and modifying the terms of the Order.

4. 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 8.18(4)(b) of the EPA Act to modify the Order.

5. At issue is the unauthorised demolition of the locally listed heritage item I55 as identified in sch 5 pt 1 of the Burwood Local Environmental Plan 2012, which is situated on the site.

6. Of relevance, an approved development application DA-11/2021 (the DA) benefits the site and grants consent for works, including the partial demolition of the rear ground floor and internal alterations, to the existing heritage building.

7. However, works have not been undertaken in accordance with the approved plans and the Respondent issued the Order after determining that unauthorised works had been carried out on the heritage-listed Victorian cottage, namely the removal of footings, piers, walls, floors, doors, windows, architraves, joinery, ceilings, roofs and verandahs on the ground and first floor of the building.

8. The Respondent contends that the unauthorised works have led to severe impacts on the listed heritage item, as well as impacts to the heritage values of the Heritage Conservation Area within which the heritage item is located.

9. Pursuant to s 9.34 of the EPA Act, the Respondent gave notice of its intention to issue the Order on 20 February 2023.

10. Subsequently, the Respondent issued the Order to the Applicant on 27 April 2023.

11. Generally, the terms of the Order require the reconstruction of the entire dwelling, including traditional building methods and materials, and for the work to be performed under the supervision of a heritage architect.

12. The terms also require compliance within 28 days of the date the Order was issued.

13. The Applicant commenced these proceedings on 24 May 2023.

14. During the conciliation conference, the parties agreed to modify the terms of the Order to refer to agreed plans, schedules, specifications and procedures to guide the reconstruction of the heritage item. These terms also require certification of completed building works, and modify the specified period for compliance with the order, being 616 days from the date of the Court’s orders in this matter.

15. Having considered the jurisdictional requirements and forming the necessary view required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

16. The orders of the Court are:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order, General Order No 10, issued to the Applicant on 27 April 2023 by the Respondent in relation to 48 Fitzroy Street, Burwood, as set out at Annexure A.

M Pullinger

Acting Commissioner of the Court

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Annexure A

Decision last updated: 28 November 2023