Cadman v Mosman Municipal Council

[2023] NSWLEC 1170

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cadman v Mosman Municipal Council [2023] NSWLEC 1170

Hearing dates:

Conciliation conference on 31 March 2023

Date of orders:

13 April 2023

Decision date:

13 April 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

1. The appeal is upheld.

2. The time for compliance with Orders 1-3 of the Development Control Order dated 20 September 2022 (DCO) is extended:

1. Initially for six weeks to permit the applicants to lodge the development application referred to in the notation in (1)(a) above;

2. If the applicants lodge the development application referred to in order 2(a) above, for a further 8 months to permit determination of the development application;

3. If consent is granted to the development application referred to in order 2(a) above, for a further 6 months to permit implementation of the consent;

4. If the consent is implemented, for a further 2 weeks to permit lodgement of a building information certificate application as referred to in paragraph 13 above;

5. If a building certificate application is lodged as referred to in notation (2) above, for a further 3 months to permit determination of the building information certificate.

3. Orders 1-3 of the DCO will cease to operate upon satisfaction of all of the following conditions:

1. Completion of the development the subject of the development application referred to in order 2(a) above, including compliance with all conditions of consent; and

2. The issue of a building information certificate for the works referred to in notation (2) above.

4. For avoidance of doubt, if any of the time periods specified in order 1 above are not satisfied, then Orders 1-3 of the DCO commence to operate again from that date.

5. Either party may apply to the Court by notice of motion to extend any of the time periods specified in these orders.

Catchwords:

APPEAL – development control order – demolish works order – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, Div 9.3, ss 1.4, 8.18, 9.34, Pt 1 Sch 5

Land and Environment Court Act 1979, s 34

Cases Cited:

Phillips v Walsh (1990) 20 NSWLR 206

Category:

Principal judgment

Parties:

Patrick Cadman (First Applicant)
Alison Cadman (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicants)
J Walker (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicants)
Maddocks (Respondent)

File Number(s):

2022/309448

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The applicants appeal against a development control order that was issued by Mosman Municipal Council on 20 September 2022, which requires them to demolish a swimming pool and surrounding hardstand area, a retaining wall and a garage at 6 Calliope Street, Mosman. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The applicants appeal against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which are orders that extend the time for compliance with the development control order to allow a development application to be lodged and development consent to be granted, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The order is issued pursuant to Div 9.3 of the EPA Act and Pt 1 of Sch 5 to the 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 Schedule 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”. It is not disputed by the applicants that the buildings the subject of the order required planning approval, and were erected without approval. In addition, parts of the garage and retaining wall encroach on the neighbouring land owned by the respondent.

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 31 March 2023. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was provided on the same date, and on 4 April 2023 an amended agreement was provided. The agreement is that the time for compliance with the development control order is extended to allow a development application to be lodged for prospective works and for use of the swimming pool, for development consent to be granted, and for a building information certificate to be obtained. The agreement is also that the development control order will cease to operate upon development being carried out in accordance with a consent, and on the issue of a building information certificate. The parameters of the development application and of the building information certificate application have been agreed upon, and are noted below.

The power to make orders in accordance with the agreement

5. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms 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).

6. Item 3 of Pt 1 of Sch 5 of the EPA Act allows a Demolish Works Order to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”. A Demolish Works Order can be issued to the owner of the building. It is agreed, and I accept, that the applicants are the owner of the buildings, including that part of the buildings that were erected on the adjoining land.

7. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are as follows:

(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.

8. I am satisfied that the power under ss 8.18(4)(f) is sufficiently broad to enable the Court to make orders in the terms agreed by the parties.

9. I am therefore satisfied that the decision to make orders that extend the time for compliance and cease the operation of the development control order upon certain conditions being met, is a decision that the Court can make in the proper exercise of its functions, for the reason that there is a statutory basis under Item 3 of Pt 1 of Sch 5 of the EPA Act to issue a development control order, and s 8.18(4)(f) gives the Court the power, on the hearing of the appeal, to make such other order “with respect to the development control order as the Court thinks fit”.

10. Further, the agreement includes an order that allows a party to apply to the Court to extend any of the time periods specified in the final orders. This is the equivalent of granting liberty to apply. I consider that the grant of liberty to apply is appropriate in circumstances where the time frames given by the orders need to be extended due to delays in the assessment of the development application or building information certificate application by the Council, or delays in the carrying out of the works required by the development consent. As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, “In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order.”

The outcome of the appeal

11. Having reached the state of satisfaction that the decision is one that the Court could make in the 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. 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.

12. The Court notes that:

1. The applicants have agreed to lodge, within six weeks of the date of these orders, a development application including, but not limited to, the following:

1. Replacement of the existing unlawful garage the subject of Order 3 of the Development Control Order (DCO) with a new garage, to be constructed entirely within the boundaries of the subject property (the new garage may incorporate the non-encroaching part of the western wall of the existing garage);

2. Replacement of the existing unlawful retaining wall the subject of Order 2 of the DCO with a new retaining wall or structure to be constructed entirely within the boundaries of the subject property; and

3. Use of the existing unlawful swimming pool and some of the concrete hardstand area the subject of Order 1 of the DCO.

2. If development consent is granted to the application referred to in order 2 above, the applicants agree to lodge, not later than 2 weeks after completion of the works the subject of the consent, a building information certificate for (but not necessarily limited to) the unlawful swimming pool and that part of the surrounding concrete hardstand area which remains following implementation of the consent.

13. The Court orders that:

1. The appeal is upheld.

2. The time for compliance with Orders 1-3 of the Development Control Order dated 20 September 2022 (DCO) is extended:

1. Initially for six weeks to permit the applicants to lodge the development application referred to in the notation in (1)(a) above;

2. If the applicants lodge the development application referred to in order 2(a) above, for a further 8 months to permit determination of the development application;

3. If consent is granted to the development application referred to in order 2(a) above, for a further 6 months to permit implementation of the consent;

4. If the consent is implemented, for a further 2 weeks to permit lodgement of a building information certificate application as referred to in paragraph 13 above;

5. If a building certificate application is lodged as referred to in notation (2) above, for a further 3 months to permit determination of the building information certificate.

3. Orders 1-3 of the DCO will cease to operate upon satisfaction of all of the following conditions:

1. Completion of the development the subject of the development application referred to in order 2(a) above, including compliance with all conditions of consent; and

2. The issue of a building information certificate for the works referred to in notation (2) above.

4. For avoidance of doubt, if any of the time periods specified in order 1 above are not satisfied, then Orders 1-3 of the DCO commence to operate again from that date.

5. Either party may apply to the Court by notice of motion to extend any of the time periods specified in these orders.

J Gray

Commissioner of the Court

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Decision last updated: 13 April 2023