Bannigan v Ku ring gai Council

[2022] NSWLEC 1434

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bannigan v Ku ring gai Council [2022] NSWLEC 1434

Hearing dates:

Conciliation conference 8 June 2022, 5 August 2022

Date of orders:

18 August 2022

Decision date:

18 August 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Pursuant to s.8.18(4) of the Environmental Planning and Assessment Act 1979, the development control orders No. 3 & 10 dated 31 January 2022 and given by the Respondent pursuant to Div 9.3 and Schedule 5 Part 1 of the Environmental Planning and Assessment the Act 1979 to the Applicant, are modified in terms of the Modified Order attached as Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – parties agree to modified order – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.14, 8.18, 9.34, Sch 5 Pt 1

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Steven Bannigan (Applicant)
Ku ring gai Municipal Council (Respondent)

Representation:

Solicitors:
H Kahagalle, Addisons (Applicant)
C Rose, Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/54711

Publication restriction:

No

Judgment

1. COMMISSIONER: On 31 January 2022, Ku ring gai Council (“the Council”) issued a development control order that requires the demolition and/or alteration of unauthorised works constructed at 6A Water Street, Wahroonga. Mr Bannigan appeals against the order, pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. The order was issued by the Council pursuant to Divi 9.3 of the EPA Act and Pt 1 of Sch 5 to the EPA Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Pt 1 of Sch 5. Item 3 of Pt 1 of Sch 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”. The Respondent further relies on Item 10 of Pt 1 Sch 5 which allows for a Restore Works Order where similarly works were erected without such approval. It is not disputed by the parties that the effected works require planning approval, and that they were erected without approval. I am satisfied that at the time of the issue of the order, and at the present time, the conditions for the issue of the order contained in Items 3 and 10 of Pt 1 of Sch 5 of the EPA Act exist.

3. The appeal was listed for conciliation on 8 June and on 5 August 2022 in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided at each conciliation conference. Following the conciliation, agreement was reached between the parties. That agreement is that the appeal should be upheld, and the development control order be amended pursuant to s 8.18(4) of the EPA Act, as detailed in the annexure to this judgment.

4. As the presiding Commissioner, I am satisfied that the decision to make the requested orders to modify the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify an development control order.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

6. The Court orders that:

1. The appeal is upheld

2. Pursuant to s.8.18(4) of the Environmental Planning and Assessment Act 1979, the development control orders No. 3 & 10 dated 31 January 2022 and given by the Respondent pursuant to Div 9.3 and Schedule 5 Part 1 of the Environmental Planning and Assessment the Act 1979 to the Applicant, are modified in terms of the Modified Order attached as Annexure A.

.…………………………

D M Dickson

Commissioner of the Court

Annexure A (340334, pdf)