Delaney v Randwick City Council

[2019] NSWLEC 1180

Land and Environment Court

New South Wales

Medium Neutral Citation:	Delaney v Randwick City Council [2019] NSWLEC 1180
Hearing dates:	Conciliation conference on 29 April 2019; 20-21 May 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The appeal is upheld. (2) Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Order Number 3, the Order subject of these proceedings, is amended in accordance with the annexed amended Order herewith marked “A”. (3)   No order is made as to costs.
Catchwords:	ORDER – appeal – 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:	Ronan Delaney (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: M Hanna, Wilshire Webb Staunton Beattie Lawyers (Respondent)   Other: R Delaney, self-represented (Applicant)
File Number(s):	2018/286895
Publication restriction:	No

Judgment

1. COMMISSIONER: Mr Delaney appeals against a development control order issued on 4 September 2018 by Randwick City Council (“the Council”) under s 9.34(1)(a) and Order No. 3 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). The order concerns a dwelling he owns at 19 Goorawahl Avenue, La Perouse, and requires him to demolish and/or remove the balustrading located around the perimeter of the flat roof of the dwelling. The appeal is lodged pursuant to s 8.18 of the EPA Act.

2. Section 8.18(4) sets out the powers of the Court on an appeal against an order, 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.

3. 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 29 April 2019, 20 and 21 May 2019. I presided over the conciliation conference.

4. After 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 modifying the development control order to allow additional time for the removal of the balustrading.

5. 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)(b) of the EPA Act to modify the order.

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. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Order Number 3, the Order subject of these proceedings, is amended in accordance with the annexed amended Order herewith marked “A”.

3. No order is made as to costs.

…………………………….

Commissioner Gray

Annexure A (1.02 MB)

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Decision last updated: 07 June 2019