Alliance Project Services Pty Ltd v Waverley Council

[2023] NSWLEC 1290

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Alliance Project Services Pty Ltd v Waverley Council [2023] NSWLEC 1290

Hearing dates:

Conciliation conference on 8 June 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The development control order NO-5136 issued by the respondent to the applicant on 29 November 2022 under Schedule 5 of the Environmental Planning and Assessment Act 1979 is, pursuant to 8.18(4)(b) of the Act, modified in accordance with the development control order at Annexure A.

Catchwords:

APPEAL – development control order – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18, Sch 5

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Alliance Project Services Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/386490

Publication restriction:

Nil

Judgment

1. These proceedings concern an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the development control order (Order 2 – Stop Work Order) dated 29 November 2022 (Order) issued to Alliance Project Services Pty Ltd (applicant).

2. The Order required that the applicant immediately cease the unauthorised building works at the Bondi Icebergs Club, bath and Dining Room and Bar located at 1 Notts Avenue, Bondi Beach (site).

3. 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 8 June 2023. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the decision is one 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 in the following terms:

“To cease carrying out any unauthorised building works at BONDI ICEBERGS, 1 Notts Avenue, BONDI BEACH NSW 2026.

To cease carrying out the following works at the Bondi Icebergs Dining Room Premises at BONDI ICEBERGS, 1 Notts Avenue, BONDI BEACH NSW 2026:

(a) any building work relating to the roofed area; and

(b) the installation of any mechanical plant on the roof,

that is:

(i) not authorised by, or inconsistent with, any development consent, where such consent is required; or

(ii) not authorised by any construction certificate required to be obtained prior to the carrying out of the building work.

For the avoidance of any doubt, the terms above do not include any maintenance or repair of any existing structures or mechanical plant on the roof or the roof itself.”

6. Section 8.18(4) sets out the powers of the Court on an appeal in respect of an order. Those powers are broad and include the following:

(4) On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

7. I am satisfied that the parties’ decision is within power and as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

8. The Court notes that each party shall pay its own costs of these proceedings.

9. The Court orders:

1. The appeal is upheld.

2. The development control order NO-5136 issued by the respondent to the applicant on 29 November 2022 under Schedule 5 of the Environmental Planning and Assessment Act 1979 is, pursuant to 8.18(4)(b) of the Act, modified in accordance with the development control order at Annexure A.

………………….

S Dixon

Senior Commissioner of the Court

Annexure A (231163, pdf)

**********

Amendments

19 June 2023 - Correction to typographical error at [6].