Fan He v Ku-Ring-Gai Council

[2022] NSWLEC 1257

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fan He v Ku-Ring-Gai Council [2022] NSWLEC 1257

Hearing dates:

Conciliation conference on 13 April 2022; 27 April 2022

Date of orders:

23 MAY 2022

Decision date:

23 May 2022

Jurisdiction:

Class 1

Before:

McEwen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Control Order No. 2 issued to the applicant on 21 December 2021 by the respondent in relation to Lot A in DP 372363, known as 45 Cherry Street, Warrawee is modified by the following Orders:

(a) Order 1 is modified to add the words: “other than the works that are specified in Schedule 1 (including the attached plans) to this Order.”

(b) Add Schedule 1 as follows:
“Schedule 1

i. Formwork rectification to level one formwork. Replace/repair woodwork and fixing.
ii. Pour Level 1 slab.
iii. Install columns to support slab Level 1 shown on the Ground Floor Column Location Plan No. S0101 Rev 1 dated 14 April 2022.
iv. Wait 14 days for concrete to cure once slab is poured.
v. Remove 50% backprops between ground floor and level 1.
vi. Remove all backprops from unauthorised area of basement.
vii. Put drainage holes in basement floor prior to fill being imported.
viii. Start backfilling.
ix. Backfilling to be carried out in accordance with methodology shown on Basement Backfill Plan No. S01 Rev 1 dated 14 April 2022.
x. Once backfilling nearing completion in accordance with methodology – install Besser block wall in accordance with detail shown on section 1 on Basement Backfill Plan No. S01 Rev 1 dated 14 April 2022. Blocks are to be held in place with a starter bar and concrete to be filled to a height of 0.6 m / 1.2 m.
xi. Install waterproofing and drainage to block wall between back filled area and approved basement area.
xii. Finalise construction of Besser block wall to underside of ground floor slab with upper most connection being dry block or similar.”

(c) Add Order 4 as follows:

“The applicant is to:
(a) Advise the respondent of the completion of the works set out in Schedule 1, with the exception of (xii), which is to be completed but for the final blocks so that the respondent has the opportunity to inspect the fill behind the Besser block wall;
(b) Provide certification from an engineer that the works set out in Schedule 1, with the exception of (xii), have been completed;
(c) Provide chain of custody receipts for the VENM deposited in the basement area;

(d) Permit the respondent to conduct an inspection within five business days of the Council’s Compliance Team being informed of the matters set out in Order 4a – c above. The respondent may write to the applicant to confirm whether in its opinion the matters in Schedule 1 have been satisfied after the conclusion of the inspection.”

(3) When all the matters in Schedule 1 have been satisfied the Development Control Order is revoked.

Catchwords:

DEVELOPMENT CONTROL ORDER – stop work order - conciliation conference – agreement between the parties –modification - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.2, 8.18, Sch 5

Ku-Ring-Gai Local Environmental Plan 2015

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

Fan He (Applicant)
Ku-Ring-Gai Council (Respondent)

Representation:

Counsel:
M. Sonter (Solicitor) (Applicant)
C. Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/008304

Publication restriction:

No

Judgment

1. COMMISSIONER: The nature of the proceedings: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning & Assessment Act 1979 (EPA Act) against a Development Control Order (DCO), being a Stop Work Order – Order No. 2 under Pt 1 Sch 5 of the EPA Act.

2. The DCO was issued by the respondent to the applicant as the owner of land legally described as Lot A DP 372363 and known as 45 Cherry Street, Warrawee (the land) on 21 December 2021.

3. The DCO required the applicant to immediately stop all building work being carried out on the land because it was being carried out in contravention of s 4.2 of the EPA Act in that it was not being carried out in accordance with development consent DA 0146/20 dated 9 October 2020 and development consent had not been obtained for aspects of the work (the unapproved work).

4. DA 0146/20, as modified on 10 September 2021, approved the demolition of existing structures and the erection of a new dwelling, pool, front fence and associated works. In particular DA 0146/20 approved a basement as part of the new dwelling with an area of 195.5 m².

5. The unapproved work extended the basement beyond the rear of the approved dwelling footprint by approximately 280 m² and included a wall which generally divided the approved basement works from the unapproved work.

6. This appeal against the DCO was lodged by the applicant on 11 January 2022.

7. The conciliation conference: 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 13 April and 27 April 2022. I presided over the conciliation conference.

8. The parties’ agreement: 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 involves a modification of the DCO to facilitate remedial works to the basement which will generally restore it to the approved floor area so that it is consistent with the works approved by DA 0146/20. Thereafter the DCO is to be revoked.

9. Jurisdiction: 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 and power under s 8.18(4) of the EPA Act to modify the DCO in the manner proposed by the parties. There are jurisdictional prerequisites that must be satisfied before this power can be exercised.

10. Division 8.5, s 8.18 of the EPA Act, so far as is relevant, provides as follows:

8.18   Appeals concerning orders

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(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.

11. Satisfaction of jurisdiction: 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. for the following reasons:

1. The applicant is the owner of the land and the relevant person to whom the DCO has been given pursuant to Pt 1 Sch 5 of the EPA Act.

2. The applicant’s appeal was made, as required, within 28 days of the DCO being given to the applicant (s 8.18 (3)(a) EPA Act).

3. The land is zoned R2 – Low Density Residential Zone pursuant to Ku-Ring-Gai Local Environmental Plan 2015 (KLEP) and development for the purpose of dwelling houses is permissible with development consent. However, the remedial works proposed do not in this case require the making of an application under the EPA Act for consent or approval to carry out the proposed work because such work will be carried out in compliance with a DCO (s 29 Pt 11 Sch 5 EPA Act).

4. I consider that the power to modify the DCO and to make the proposed orders is clearly contained within s 8.18 (4) of the EPA Act, particularly subs (a), (b), (e) and (f).

12. Disposal of proceedings in accordance with the parties’ decision: 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.

13. The Court orders that:

1. The appeal is upheld.

2. Development Control Order No. 2 issued to the applicant on 21 December 2021 by the respondent in relation to Lot A in DP 372363, known as 45 Cherry Street, Warrawee is modified by the following Orders:

1. Order 1 is modified to add the words: “other than the works that are specified in Schedule 1 (including the attached plans) to this Order.”

2. Add Schedule 1 as follows:

“Schedule 1

1. Formwork rectification to level one formwork. Replace/repair woodwork and fixing.

2. Pour Level 1 slab.

3. Install columns to support slab Level 1 shown on the Ground Floor Column Location Plan No. S0101 Rev 1 dated 14 April 2022.

4. Wait 14 days for concrete to cure once slab is poured.

5. Remove 50% backprops between ground floor and level 1.

6. Remove all backprops from unauthorised area of basement.

7. Put drainage holes in basement floor prior to fill being imported.

8. Start backfilling.

9. Backfilling to be carried out in accordance with methodology shown on Basement Backfill Plan No. S01 Rev 1 dated 14 April 2022.

10. Once backfilling nearing completion in accordance with methodology – install Besser block wall in accordance with detail shown on section 1 on Basement Backfill Plan No. S01 Rev 1 dated 14 April 2022. Blocks are to be held in place with a starter bar and concrete to be filled to a height of 0.6 m / 1.2 m.

11. Install waterproofing and drainage to block wall between back filled area and approved basement area.

12. Finalise construction of Besser block wall to underside of ground floor slab with upper most connection being dry block or similar.”

3. Add Order 4 as follows:

"The applicant is to:

(a) Advise the respondent of the completion of the works set out in Schedule 1, with the exception of (xii), which is to be completed but for the final blocks so that the respondent has the opportunity to inspect the fill behind the Besser block wall;

(b) Provide certification from an engineer that the works set out in Schedule 1, with the exception of (xii), have been completed;

(c) Provide chain of custody receipts for the VENM deposited in the basement area;

(d) Permit the respondent to conduct an inspection within five business days of the Council’s Compliance Team being informed of the matters set out in Order 4 a – c above. The respondent may write to the applicant to confirm whether in its opinion the matters in Schedule 1 have been satisfied after the conclusion of the inspection."

3. When all the matters in Schedule 1 have been satisfied the Development Control Order is revoked.

……………………….

C McEwen

Acting Commissioner of the Court

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Decision last updated: 23 May 2022