Chan v Ku-ring-gai Council

[2021] NSWLEC 1425

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chan v Ku-ring-gai Council [2021] NSWLEC 1425

Hearing dates:

Conciliation conference on 25 June 2021

Date of orders:

27 July 2021

Decision date:

27 July 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development Control Order No. EPA0142/20 dated 5 February 2021 is modified as follows:

Order 3

1. Remove all timber support posts and cross beams in the front yard of the site (67 Eton Road, Lindfield) with the exception of the timber support posts and cross beams located in the planter box parallel to the Eton Road frontage of the site.

(3) The works required to be carried out under Order (2) are to be carried out within 28 days of the date of these orders.
(4) The Applicant is to notify the Council within 7 days of the completion of works. The notification must be supported by evidence showing the works required under Order (2) have been completed.
(5) Once the works required under Order (2) have been completed, a letter will be sent to the Applicant within 7 days of the inspection confirming that the Council is satisfied that the works have been completed in accordance with Order (2) and that the Development Control Order has been complied with.
(6) No order as to costs.

Catchwords:

DEVELOPMENT CONTROL ORDER – appeal against the order – conciliation conference – agreement between the parties

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Astrid Chan (First Applicant)
Andrew Willows (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
Astrid Chan (Litigant In Person) (First Applicant)
Andrew Willows (Litigant In Person) (Second Applicant)
L Finn (Solicitor) (Respondent)

Solicitors:
Hones Lawyers Pty Ltd (Respondent)

File Number(s):

2021/39586

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Development Control Order No. EPA0142/20 dated 5 February 2021 requiring the removal of timber posts and cross beams erected in the front yard (the DCO) of 67 Eton Road, Lindfield (the site) issued by Ku-ring-gai Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 June 2021. I presided over the conciliation conference. 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.

3. 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.

4. The front yard of the site is occupied by four raised planter beds, with raised timber posts and cross beams over, as well as piping for irrigation of the planter beds (photograph below).

5. The DCO was issued by the Council pursuant to s 9.34 and Pt 1 of Sch 5 of the EPA Act and is a Demolish Works Order. The terms of the DCO, dated 5 February 2021, are:

“Order 3

1. Remove all the timber support posts and cross beam [sic] erected in the front yard at the premises.

2. Remove the piping from the front yard associated with the raised garden beds at the premises.

3. Remove the shipping container that has been placed in the rear yard at the premises.

4. Demolish and remove the roofed pergola structure built over the deck in the rear yard at the premises.”

6. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify the DCO.

Orders

7. The orders of the Court are:

1. The appeal is upheld.

2. Development Control Order No. EPA0142/20 dated 5 February 2021 is modified as follows:

Order 3

1. Remove all timber support posts and cross beams in the front yard of the site at 67 Eton Road, Lindfield, with the exception of the timber support posts and cross beams located in the planter box parallel to the Eton Road frontage of the site.

3. The works required to be carried out under Order (2) are to be carried out within 28 days of the date of these orders.

4. The Applicant is to notify the Council within 7 days of the completion of works. The notification must be supported by evidence showing the works required under Order (2) have been completed.

5. Once the works required under Order (2) have been completed, a letter will be sent to the Applicant within 7 days of the inspection confirming that the Council is satisfied that the works have been completed in accordance with Order (2) and that the Development Control Order has been complied with.

6. No order as to costs.

________________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 27 July 2021