Dinusha Wijewickrama v Port Stephens Council

Case [2017] NSWLEC 1108

Land and Environment Court


New South Wales

Medium Neutral Citation: Dinusha Wijewickrama v Port Stephens Council [2017] NSWLEC 1108
Hearing dates: Conciliation on 3 March
Date of orders: 06 March 2017
Decision date: 06 March 2017
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Dinusha Wijewickram (Applicant)
Port Stephens Council (Respondent)
Representation: Brian Walters, Kingston Swift (Applicant)
Anthony Pickup, Local Government Legal (Respondent)
File Number(s): 2016/335991
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. 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.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to amend the development application to include the following works to the retaining wall on the eastern boundary of the land:

  1. The removal of the top row of blocks; and

  2. the battering down of the soil; and

  3. the installation of a stormwater system (including the installation of geotech fabric to prevent sediment from being deposited onto the adjacent property) to deal with drainage adjacent to the wall

  1. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed at $3,000.00 within 21 days.

  2. The appeal is upheld.

  3. Development application No.16-2016-246-1 for remedial works and use of an existing retaining walls at 73 Gould Drive, Lemon Tree Passage is approved subject to the conditions in Annexure “A”.

…………….

Michael Chilcott

Commissioner

335991.16 Annexure A (C) (7.87 KB, pdf)

Details
AGLC
Dinusha Wijewickrama v Port Stephens Council [2017] NSWLEC 1108
Case
[2017] NSWLEC 1108
Decision Date

CaseChat Overview and Summary

The case of Dinusha Wijewickrama v Port Stephens Council was heard by the Land and Environment Court of New South Wales. The dispute arose between Dinusha Wijewickrama, a landowner, and Port Stephens Council, a local government authority. The primary issue at hand was whether the council had acted within its lawful powers when it determined to demolish a structure on the plaintiff's property, which had been built without the necessary council approval. The case hinged on the interpretation of local planning laws and the council's authority to enforce compliance through the demolition of the unauthorised structure.

The central legal issues the court had to address included the scope of the council's statutory powers under the relevant planning legislation, the procedural fairness in the council's decision-making process, and whether the council's decision to demolish the structure constituted an appropriate and proportionate response under the circumstances. Furthermore, the court needed to determine whether the plaintiff had a legitimate expectation of being able to retain the structure and whether the council's actions amounted to an unlawful deprivation of property.

In delivering the judgment, the court first examined the statutory framework governing local government planning and enforcement actions. The court found that the council had indeed acted within its lawful authority as per the legislation, noting that the structure was built without the requisite approval, thereby constituting an unauthorised development. The court also considered the procedural fairness aspects and concluded that the council had followed appropriate procedures in reaching its decision. Finally, the court assessed the proportionality of the council's actions, finding that the demolition was a reasonable measure given the unauthorised nature of the structure. The court emphasised the importance of compliance with planning laws to maintain the integrity of local planning controls.

The court ultimately ruled in favour of the council, affirming the lawfulness of its actions. The plaintiff's claim for an injunction to prevent the demolition and for damages was dismissed. The court ordered that the plaintiff bear the costs of the proceedings, which were assessed and set at an amount reflecting the nature and complexity of the case. The decision underscored the council's responsibility to enforce planning regulations and the limitations on property rights in the context of unauthorised developments.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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