Ash v Shoalhaven City Council

[2020] NSWLEC 1279

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ash v Shoalhaven City Council [2020] NSWLEC 1279

Hearing dates:

Conciliation conference on 16 June 2020

Date of orders:

30 June 2020

Decision date:

30 June 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the development control order issued by the Respondent to the Applicant dated 4 February 2020 is modified in accordance with the development control order at Annexure ‘A’.

(3) Each party shall pay its own costs of these proceedings.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Neil Francis Ash (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
N Ash (Litigant in Person) (Applicant)
M Winram (Solicitor) (Respondent)

Solicitors:
Maddocks Lawyers (Respondent)

File Number(s):

2020/85868

Publication restriction:

No

Judgment

1. COMMISSIONER: Neil Francis Ash (the Applicant) has appealed the decision of Shoalhaven City Council (the Respondent) to issue a Demolish Works Order dated 4 February 2019, pursuant to Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

2. The Demolish Works Order was works undertaken without development consent at Lot 132 DP 11629 Inglewood Crescent, Tomerong (the Subject Site).

3. The appeal comes to the Court pursuant to s 8.18 of the EP&A Act, and falls within Class 1 of the Court’s jurisdiction.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 16 June 2020 by teleconference, and I have presided over the conciliation conference.

5. 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 granting consent to the Applicant’s modification application, subject to conditions.

6. 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 EP&A Act to modify the Demolish Works Order, which is a general order made in accordance with the table in Part 1 of Schedule 5 of the EP&A Act.

7. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

9. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

10. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the development control order issued by the Respondent to the Applicant dated 4 February 2020 is modified in accordance with the development control order at Annexure ‘A’.

3. Each party shall pay its own costs of these proceedings.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (179296, pdf)

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