Del-Ben v Waverley Council

[2021] NSWLEC 1178

Land and Environment Court

New South Wales

Medium Neutral Citation:

Del-Ben v Waverley Council [2021] NSWLEC 1178

Hearing dates:

Conciliation conference on 1, 16, 25 and 26 March 2021

Date of orders:

14 April 2021

Decision date:

14 April 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979, the Court finds that the Developmental Control Order, being an Order No. 3, issued by the Respondent to the Applicant on 17 November 2020 has been sufficiently complied with.

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – unauthorised screen at rear boundary – exempt and complying development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Makedonka Del-Ben (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
R White (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Hudson Law (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/355145

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 - Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against a development control order, being  Order No. 3, issued by the Respondent on 17 November 2020 to the Applicant to remove unauthorised building works consisting of the erection of a screening (approximately 5m wide, 2m high from existing boundary fence level) at the rear (southern side) of the premises (the Unauthorised Building Works) at 413 Bronte Road, Bronte (the Site).

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 1, 16, 25 and 26 March 2021. I have presided over the conciliation conference.

3. 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 dismissing the appeal.

4. 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. The parties’ decision involves the Court exercising the function under s 8.18(4)(d) of the EPA Act.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be within the Court’s discretion following the removal of the Unauthorised Building Works to make an order that the development control order has been sufficiently complied with and I rely on the advice of the parties that the Unauthorised Building Works have been removed as set out in the Statement of Jurisdiction signed by the parties and dated 1 April 2021.

6. I am 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.

7. As the parties’ decision is a decision that the Court could have made in the proper 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.

8. The Court notes that the Respondent will be issuing a further Development Control Order, being an Order No. 11, on the Applicant requiring the Applicant to comply with Development Consent DA-449/2005 (as amended) in respect of the carrying out further landscaping works to give effect to the agreement between the parties.

9. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act1979, the Court finds that the Developmental Control Order, being an Order No. 3, issued by the Respondent to the Applicant on 17 November 2020 has been sufficiently complied with.

……………………….

E Espinosa

Commissioner of the Court

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