Down and Messis v Penrith City Council

[2023] NSWLEC 1038

Land and Environment Court

New South Wales

Medium Neutral Citation:

Down and Messis v Penrith City Council [2023] NSWLEC 1038

Hearing dates:

Conciliation conference on 30 January 2023

Date of orders:

2 February 2023

Decision date:

02 February 2023

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order given by the Council to the Applicants on 22 July 2022 is modified as set out in the amended development control order at Annexure A.

Catchwords:

APPEAL – development control order –structure erected without required development consent – demolish works order – conciliation conference – agreement – modified order

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 8.18, 9.34, Sch 5, Pt 1

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 1.15, 2.11, 2.12

Category:

Principal judgment

Parties:

Jordan Michael Down (First Applicant)
Alethea Messis (Second Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
E Whitney (Solicitor) (Applicants)
B Koytz (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicants)
Penrith City Council (Respondent)

File Number(s):

2022/245151

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against a development control order (Order) given to the Applicants by Penrith City Council (Council) on
   22 July 2022. The Order relates to the land described as Lot 2 SP 50532, known as 2/6d Royal Place, St Clair (Land). The Order requires the demolition of a pergola (Pergola) which has been erected at the rear of the existing dwelling on the Land. The Pergola is ancillary to the existing dwelling, which is part of a dual occupancy.

The statutory context

2. The Order was given 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 Pt 1 of Sch 5 to the EPA Act. Item 3 in that table allows a development control order to be issued as a “demolish works order”, where a building requiring a planning approval is erected without approval and where a building is otherwise erected in contravention of the EPA Act. Such an order can be given to the owner of the land on which the building has been erected.

3. The Pergola is a building for the purposes of the EPA Act.

4. The Land is within Zone R2 Low Density Residential under the Penrith Local Environmental Plan 2010 (LEP). Development for the purposes of a dual occupancy is permissible with development consent on land within that zone.

5. Development involving the construction of a pergola is specified as exempt development by cll 1.15 and 2.11 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) if it meets the development standards specified in cl 2.12 of the Codes SEPP. Clause 2.12(1)(f)(ii) of the Codes SEPP specifies that, to be exempt development, the pergola must be set back at least 900mm from the side boundary. The Pergola is located closer than 900 mm from the western side boundary and is therefore not exempt development for the purposes of the Codes SEPP.

The appeal

6. The Applicants are the owners of the Land and have appealed against the Order pursuant to s 8.18 of the EPA Act. The appeal was commenced on 18 August 2022, within the time required by s 8.18(3) of the EPA Act.

7. The Applicants do not dispute the Council’s contention that the Pergola requires a planning approval, but was erected without any such approval. They say that this happened prior to their purchase of the Land.

8. Section 8.18(4) of the EPA Act 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.

9. The appeal was listed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which took place on 30 January 2023. 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 signed agreement was filed with the Court on the same day.

The proposed amended order

10. The agreement reached is for the Order to be modified so that the Pergola must be demolished unless, by 5pm on Tuesday 1 August 2023, a building information certificate has been issued by the Council in relation to the Pergola.

The Court’s jurisdiction

11. I am satisfied that the decision 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). This is because s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order.

12. Having reached the state of satisfaction that the decision the subject of the parties’ agreement 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 parties’ agreement.

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

The Court’s orders

14. The Court Orders that:

1. The Appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 the development control order given by the Council to the Applicants on 22 July 2022 is modified in accordance with Annexure A.

A Bradbury

Acting Commissioner of the Court

Annexure A

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Decision last updated: 02 February 2023