Champion v Willoughby City Council

[2021] NSWLEC 1073

Land and Environment Court

New South Wales

Medium Neutral Citation:

Champion v Willoughby City Council [2021] NSWLEC 1073

Hearing dates:

Conciliation conference on 9 February 2021

Date of orders:

17 February 2021

Decision date:

17 February 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld in part.

(2) An order that pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicants on 30 March 2020 is modified as set out in Annexure 'A'.

(3) The Order at Annexure A is made pursuant to Division 9.3, Schedule 5 (Order Number 11) of the Environmental Planning and Assessment Act 1979.

Catchwords:

APPEAL – development control order – demolish works order and compliance order – roof tiles of a dwelling in a heritage conservation area – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Laurent Lucas Maurice Jean Champion (First Applicant)
Stephanie Lee Seeto (Second Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicants)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/123138

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns the colour of roof tiles on a dwelling at 4 Hollywood Crescent, North Willoughby. Willoughby City Council (“the Council”) issued a development control order on 30 March 2020, requiring the removal of the current roof tiles from the dwelling and the installation of non-glazed red/orange terracotta Marseille roof tiles. The applicants, Laurent Lucas Maurice Jean Champion and Stephanie Lee Seeto, appeal against that order pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”). The parties have agreed on a modification of the order so that the tiles will be painted an agreed colour. The final orders in this appeal, which reflect this agreement, are outlined in [13] below.

2. The order is issued pursuant to s 9.34(1) of the EPA Act, which allows a development control order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. It is issued pursuant to Items 3 and 11 of Part 1 of Schedule 5. Item 3 allows a Demolish Works Order to be issued to demolish or remove a building where a building “requiring planning approval is erected without approval” or “is erected in contravention of this Act”, and can be issued to the owner of the building. In the EPA Act, a building is defined to include part of a building (s 1.4). Item 11 allows a Compliance Order to be issued to the owner of the premises in circumstances where a “planning approval has not been complied with”, and compels compliance with the planning approval. The relevant planning approval is a consent that was granted by the Council on 23 January 2019 for alterations and additions to the dwelling (DA 2019/229). The dwelling is in the Hollywood Heritage Conservation Area.

3. A site inspection for the purpose of the hearing of the appeal commenced on 8 February 2021. Prior to the hearing commencing formally in court, the hearing was vacated and adjourned, and the Court arranged a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference was then held on 9 February 2021. I presided over the conciliation conference.

4. Following 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 filed on 11 February 2021. The agreement is for the Court to modify the development control order in the agreed terms.

5. The modified development control order is a Compliance Order (pursuant to item 11 of Schedule 5 of the EPA Act), and requires the painting of the roof tiles to an agreed colour code, with an agreed methodology for the work to be carried out. It also requires an agreed maintenance regime, and for the painting to be carried out within 60 days.

The power to make orders in accordance with the agreement

6. 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).

7. The parties agree, and I accept, that there is power to issue the development control order as a Compliance Order (item 11 of Schedule 5 of the EPA Act) in circumstances where the development consent for alterations and additions to the dwelling did not authorise the removal of the roof tiles in the unaltered front portion of the dwelling, which roof tiles were removed and replaced.

8. In addition to there being power to issue a development control order in the nature of a Compliance Order, s 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.

9. I am satisfied that the power under ss 8.18(4)(b) and (4)(f) is sufficiently broad to enable the Court to make orders to modify the development control order in the manner agreed by the parties.

10. I am therefore satisfied that the decision to make orders to modify the order 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 11 of Schedule 5 of the EPA Act to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to modify the development control order or make such other order “with respect to the development control order as the Court thinks fit”.

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)).

12. In making the orders to give effect to the agreement between the parties, I was not required to make a determination on the construction of the development consent and whether it prescribed a particular colour of roof tile. Similarly, I was not required to make, and have not made, any assessment on the merits of the remaining issues that were originally in dispute between the parties concerning how the Court’s discretion ought to be exercised.

13. The Court orders that:

1. The appeal is upheld in part.

2. An order that pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicants on 30 March 2020 is modified as set out in Annexure 'A'.

3. The Order at Annexure A is made pursuant to Division 9.3, Schedule 5 (Order Number 11) of the Environmental Planning and Assessment Act 1979.

……………………….

J Gray

Commissioner of the Court

Annexure A (117653, pdf)

**********