Dani v Liverpool City Council

[2021] NSWLEC 1518

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dani v Liverpool City Council [2021] NSWLEC 1518

Hearing dates:

Conciliation conference on 30 August 2021

Date of orders:

01 September 2021

Decision date:

01 September 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order dated 15 March 2021, which was issued by the Council to the Applicant and Mr Santo Dani under Division 9.3 and Item 3 in Part 1 to the Table to Schedule 5 of the Environmental Planning and Assessment Act 1979, is revoked.

Catchwords:

APPEAL – development control order – conciliation conference – resolution of all contentions through carrying out work, the granting of development consent, and a building information certificate – agreement reached – order revoked

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.18, 9.34

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

Susana Dani (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
P Tannous (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
The Australian Legal Practice (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2021/97490

Publication restriction:

No

Judgment

1. COMMISSIONER: Ms Dani appeals against a development control order issued by Liverpool Council on 15 March 2021, which required her to demolish certain building works at 49 Slessor Road, Casula. 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 Part 1 of Schedule 5 to the EPA Act. The order is a demolish works order, issued pursuant to Item 3 of Part 1 of Schedule 5. It was issued because the Council was concerned that building works had been carried out that required a planning approval where no approval had been obtained. It requires the demolition of an extended portion of the existing driveway, partition walls within a garage, and an awning and hardstand space at the rear of the dwelling. Ms Dani appeals against the order pursuant to s 8.18 of the EPA Act.

2. 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 30 August 2021. I presided over the conciliation conference.

3. 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 agreement is that the order is revoked.

4. The agreement was reached as the parties agree that all contentions raised in the Statement of Facts and Contentions have now been resolved by the grant of a building information certificate for the partition walls, the awning and the hardstand space, as well as by development consent that authorises alterations and additions to the existing dwelling and the change of use of part of the garage. Additionally, work was carried out by the applicant that resolves the remaining issues.

5. As the presiding Commissioner, I am 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 (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(a) of the EPA Act gives the Court the power, on the hearing of the appeal, to revoke the development control order.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the 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.

7. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order dated 15 March 2021, which was issued by the Council to the Applicant and Mr Santo Dani under Division 9.3 and Item 3 in Part 1 to the Table to Schedule 5 of the Environmental Planning and Assessment Act 1979, is revoked.

……………………….

J Gray

Commissioner of the Court

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Decision last updated: 01 September 2021