Bonamici v Georges River Council

[2019] NSWLEC 1026

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bonamici v Georges River Council [2019] NSWLEC 1026
Hearing dates:	Conciliation conference on 11 January 2019
Date of orders:	23 January 2019
Decision date:	23 January 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [16] below
Catchwords:	ORDERS: conciliation conference; agreement between the parties; new orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Texts Cited:	Hurstville Development Control Plan No. 1
Category:	Principal judgment
Parties:	Franco Bonamici (First Applicant) Susan Lynette Bonamici (Second Applicant) Georges River Council (Respondent)
Representation:	Solicitor: S Wilson, Georges River Council (Respondent)   Other: F Bonamici, litigant in person (First Applicant) S Bonamici, litigant in person (Second Applicant)
File Number(s):	2018/208552
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Mr and Mrs Bonamici (the Applicants) lodged under s 8.18(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the issuing of an order by Georges River Council (the Council) requiring removal of paving and reinstatement of landscaping at their property at 44 Mulga Road, Oatley (the site).

2. Order number ON2017/0021 (the order) was issued as a general order on 8 June 2018 pursuant to s 9.34 and Schedule 5, Part 1– Order 3 (Demolish Work Order) of the EPA Act. It required the Applicants to remove unauthorised paving installed on the site and to restore the premises to the condition it was in before the unauthorised works were carried out.

3. The Council contended that consent had not been given for the paving which breached the conditions and plans of consent issued for the construction of the Bonamici’s residence (the approved development). The approved development showed the area the subject of the unauthorised paving as landscaping, including deep soil landscaping. The order included a requirement to comply with the order within 28 days of the date of the order.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

5. The LEC Act requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

6. In making the orders, I am not required to make a merit assessment of the issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to modifying the order are met.

7. By way of context, the Statement of Facts and Contentions (SFC) filed with the Court by the Applicants indicated that the area the subject of the unauthorised work in the order had been grassed at the time an occupation certificate had been issue. However, the consent for the approved development issued by the Council required a lowering of finished levels across the site. As a consequence, following heavy rains, the rear of the site had flooded as a result of drainage from the site and adjoining sites.

8. Accordingly, the Applicants indicated that they were required to remove the landscaping in the rear yard and install drainage pipes and porous paving to direct stormwater to Council drains. Paving of previously approved landscaped areas in the side and front setback areas was also installed, albeit the front area includes an extensive garden bed and the rear yard a central garden feature.

9. For the purposes of conciliation, the Council proposed an alternate order; namely that the applicants remove any paving works not authorised by the consent and provide deep soil landscaping in accordance with the approved plans. As well as breaching the development consent, the Council contended that the paving breached provisions of the Hurstville Development Control Plan No. 1 (the DCP) which require a minimum provision of landscaped open space. This was 20% of the site area or a total of 178m².

10. The Council further contended that the paving had the potential to create significant drainage problems for the site and could affect the amenity of adjoining and surrounding properties. The Applicants were to be given 6 months to comply with this proposed revised order.

11. During conciliation, the provisions of the DCP were considered in more detail, the existing paving and landscaping viewed, and the visible drainage works undertaken by the Applicants, in terms of pipes and pits, inspected by Council officers.

12. The Council accepted the Applicants’ agreement to remove 80.4m² of paving in the rear yard and replace it with landscaped open space. Within this open space, the applicants are able to retain the central feature with a paved border. This open space, along with the landscaped front garden, provides an area within 10% of the DCP requirement, which was considered acceptable given the circumstances.

13. The installed drainage works are to be maintained or reinstated following this work.

14. Given the Applicants were travelling overseas for two months, the time in which these works are to be completed was agreed to be eight months, rather than six.

15. As the presiding Commissioner, I am satisfied that the decision to modify the order as agreed is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The Court orders:

1. The Applicants are to remove paving from and provide landscaped open space within the area of Lot A in Deposited Plan 319833, known as 44 Mulga Road Oatley (the Premises) shown on Annexure A (being a marked copy of approved Drawing DA-02, Revision A, dated 12 March 2012) as enclosed by highlighted pink lines, being an area of approximately 80.4m².

2. The area referred to in (1) above may exclude a paved border around the central feature garden bed in the courtyard, which paved border is to be a maximum of 2.4m² in total area.

3. The Applicants are to ensure that the existing drainage infrastructure at the Premises is maintained or reinstated following the removal of paving.

4. The Applicants are to complete all works required under orders (1) and (3) above (the Works), within 8 months of the date of these orders.

5. The Applicants are to advise Council within one week of the completion of the Works.

6. The Applicants are to allow Council officers to inspect the Premises for compliance with these orders within one week of the final date for completion of the Works, or, if the Applicants advise that the required works have been completed before the final date for completion of the Works, within one week of being advised by the Applicants of completion of the Works.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A 

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Decision last updated: 23 January 2019