Chandra v Campbelltown City Council

[2021] NSWLEC 1471

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chandra v Campbelltown City Council [2021] NSWLEC 1471

Hearing dates:

Conciliation conference on 8 July 2021

Date of orders:

18 August 2021

Decision date:

18 August 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [12] of Judgment.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Campbelltown Local Environmental Plan 2015

Environmental Planning and Assessment Act 1979, ss 8.18(1), 8.18(4), 9.34

Land and Environment Court Act 1979, s 34(3)

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Prameesh Rattan Chandra (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
T Wong (Applicant)
D Baird (Solicitor) (Respondent)

Solicitors:
Byles Anjos Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/80120

Publication restriction:

No

Judgment

1. COMMISSIONER: Prameesh Rattan Chandra (the Applicant) has appealed the issue of a development control order issued under s 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act), dated 17 February 2021 and served on 22 February 2021 by Campbelltown City Council (the Respondent) in relation to certain structures at 35 Limonite Place, Eagle Vale (the Subject Site).

2. The Subject Site is zoned R2 Low Density Residential under Campbelltown Local Environmental Plan 2015 (CLEP).

3. The appeal comes to the Court pursuant to s 8.18(1) of the EP&A Act and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 8.18(4) of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 8 July 2021, and I presided over the conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy published on 6 April, 2021 (the Policy). A site view was undertaken as part of the conciliation conference, and no objectors had sought to make representations to the Court in relation to the proceedings.

6. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are no jurisdictional matters that must be satisfied before the Court can exercise its power to determine the appeal under s 8.18(4) of the EP&A Act.

9. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

11. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

12. The Court orders that:

1. The appeal is upheld.

2. Each party is to pay its own costs.

3. The terms of the Development Control Order issued by the Respondent to the Applicant under s 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 on 17 February 2021 (“the Order”) in relation to the premises at 35 Limonite Place, Eagle Vale NSW 2558 is modified as follows:

Demolish Works Order 3 – Requirements

Demolish and remove the unauthorised portable container structure mounted over trailer which is located on the north eastern side of the property, and for that purpose:

Remove and dispose the portable container structure mounted over trailer.

b)   Demolish and remove the unauthorised concrete paved hard stand situated beneath the portable container/structure trailer in the north eastern corner of the rear yard of the premises.

1. Demolish and remove the unauthorised fibro cement sheeted shed in its entirety, located on the eastern side of the property (marked ‘x’ on the aerial map attached).

2. Demolish and remove the unauthorised metal awning structure located on the western side of the property.

3. 2.   Lawfully dispose of all demolition material to a licensed waste facility or recycling facility.

Restore Works Order 10 – Requirements

1. 3.   Reinstate the premises to its original state approved under Building Application BA/3219/1983 – New Dwelling; Development Approval 50/2010/DA-U – Use of Premises as Hair Salon; and Building Certificate 363/2012/BC-UW – Garage Fitout for Hair Salon.

Compliance Order 11 – Requirements

The owner, whereby the spa pool is situated on the premises must ensure that any information prescribed by the regulations in relation to the spa pool is entered on the NSW Swimming Pool Register.

The spa pool must be covered and secured by a child-safe lockable lid or enclosed by a compliant child-resistant barrier.

Provide a resuscitation sign in a prominent location within the vicinity of the spa pool and positioned so that it can easily be read from a distance of 3 metres. The resuscitation sign must comply with Part 3 of the Swimming Pools Regulation 2018.

NB: The wording on the CPR sign must say “children should be ACTIVELY supervised”

The reasons given in the Order are modified to read as follows:

Demolish Works Order 3 – The reasons for giving this order are:

1. The building work has been unlawfully constructed on the premises.

2. The unauthorised building work on the premises does not comply with the provisions of:

a)   The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

b)   The Campbelltown (Sustainable City) Development Control Plan 2015.

1. Building is erected without prior development consent of consent authority and a prior construction certificate, in a case where both prior development consent and a prior construction certificate are required.

2. The unauthorised portable container structure mounted over trailer is unsightly, objectionable and adversely impacts on the amenity of the neighbourhood, and is prejudicial to person and property in the neighbourhood.

Restore Works Order 10 – The reasons for giving this Order are:

5.4.   The unauthorised building work is the subject of a Demolish Works Order 3 for unauthorised work that has been carried out.

6.5.   To restore and reinstate the premises to the condition in which it was approved under Building Application BA/3219/1983 – New Dwelling; Development Approval 50/2010/DA-U – Use of Premises as Hair Salon; and Building Certificate 363/2012/BC-UW – Garage Fitout for Hair Salon.

Compliance Order 11 – The reasons for giving this Order are:

1. To ensure that the spa pool that is installed, complies with relevant development standards, the Swimming Pools Act, 1992; and the Swimming Pools Regulation 2018.

The “Period for Compliance with the Order” is modified to read as follows:

The Development Control Order must be complied with by 16 March 2021 6 calendar months of the date of the modified order.

4. The modified Development Control Order, as modified in accordance with Order (3) above, is attached at Annexure ‘A’.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (126368, pdf)

**********

Decision last updated: 18 August 2021