Forrest v Ku-ring-gai Council

[2025] NSWLEC 1370

Land and Environment Court

New South Wales

Medium Neutral Citation:

Forrest v Ku-ring-gai Council [2025] NSWLEC 1370

Hearing dates:

Conciliation conference on 12 and 20 March, and 2 May 2025

Date of orders:

27 May 2025

Decision date:

27 May 2025

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Development Control Order ref EPA0087/24 dated 23 September 2024 issued by the Respondent in relation to Lot 1 in Deposited Plan 24472 and known as 5 Kilpa Place, St Ives 2075 is modified pursuant to subss 8.18(4)(b) and (f) of the Environmental Planning and Assessment Act 1979 in accordance with Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 8.18, Div 9.3, 9.34, 9.35, Sch 5, Pt 1

Land and Environment Court Act 1979, ss 17, 34

Ku-ring-gai Local Environmental Plan 2015

Texts Cited:

Ku-ring-gai Development Control Plan 2024

Category:

Principal judgment

Parties:

Zandra Forrest (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:

A Pickup (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Pickup Legal (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2024/377046

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Development Control Order ref EPA0087/24 (DCO) dated 23 September 2024 issued by Ku-ring-gai Council (Council) requiring the Applicant to demolish an unauthorised hardstand concrete area (relevant structure) situated on land identified as Lot 1 in Deposited Plan 24472 (Site) and known as 5 Kilpa Place, St Ives 2075 (Premises).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is subss 8.18(4)(b) and (f) of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 and 20 March, and 2 May 2025. I presided over the conciliation conference.

5. In these proceedings, the signed s 34(3) Agreement was filed on 8 May 2025. The terms of a decision that is agreed upon by the parties is for the order to be modified so that it requires the Applicant to carry out certain works within a certain time frame.

6. The agreement reached by the parties involved the Court upholding the appeal, and modifying the DCO in accordance with Annexure A.

Legislation

Environmental Planning and Assessment Act 1979

7. I insert the relevant sections of the EPA Act below:

8.18   Appeals concerning orders (cf previous s 121ZK)

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

…

(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—

…

(b)  modify the development control order, or

…

(f) make such other order with respect to the develop control order as the Court thinks fit.

Schedule 5 Development Control Orders

Part 1 General Orders

Column 1 To do what?	Column 2 When?	Column 3 By whom?
3	Demolish Works Order To demolish or remove a building	A building— • requiring a planning approval is erected without approval, or • requiring approval under the Local Government Act 1993 is erected without approval, or • is or is likely to become a danger to the public, or is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or • is erected in contravention of this Act.	Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building
11	Compliance Order To comply with a planning approval for the carrying out of works To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards.	A planning approval has not been complied with. Building has been unlawfully erected and does not comply with relevant development standards.	•  The owner of the premises •  The person required to carry out the works

8. 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 8.14(4)(b) of the EPA Act to uphold the appeal and modify the DCO. There are jurisdictional prerequisites that must be satisfied before these functions can be exercised. The parties have identified the jurisdictional prerequisites and explained how they have been satisfied as set out below:

1. The Applicant is the owner of the land, and the Council issued the DCO in the name of the Applicant in accordance with s 8.18(1) of the EPA Act.

2. The Applicant filed her appeal within the time provisions of s 8.18(3)(a) of the EPA Act.

3. The DCO was issued by the Council pursuant to Div 9.3, s 9.34(1)(a) and Sch 5, Pt 1 General Orders, Order 3, of the EPA Act.

4. The Council is the relevant enforcement authority pursuant to s 9.35(1) of the EPA Act.

5. Pursuant to Sch 5, Pt 1, Order 3 of the EPA Act, the DCO being a Demolish Works Order could be given to the Applicant in circumstances where the relevant structure had been erected with approval by the Council.

6. The Premises are zoned R2 Low Density Residential pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015).

7. Under Council’s planning controls, the relevant structure requires planning approval prior to construction.

8. The parties agree that the relevant structure does not have planning approval. However, it is also agreed by the parties that it is possible for the relevant structure to be regularised by the granting of a building Information Certificate (BIC) by the Council.

9. The Applicant lodged the BIC application (ref eBCU0088/24) on or about 16 July 2024 for the relevant structure, and subsequently appealed Council’s refusal of the BIC in proceedings No. 2024/00377052 (BIC proceedings). In the BIC proceedings, after agreement by the parties, the parties are requesting the Court to issue the BIC upon completion of certain works to be undertaken by the Applicant in accordance with the modified DCO in Annexure A.

10. Pursuant to s 8.18(4) of the EPA Act the Court has power to modify the DCO in accordance with subss (b) and (f). The power includes modification of the terms of the DCO and to extend the time period within which the works, the subject of the modified DCO, are to be completed, and to delete the right of appeal against the modified DCO to this Court.

11. The modified DCO in Annexure A is in the nature of a compliance order that can be issued pursuant to Sch 5 Pt 1 Order 11 of the EPA Act.

12. Order 11 of Pt 1 of Sch 5 provides that a compliance order may be given when a “Building has been unlawfully erected and does not comply with relevant development standards” and may require the owner of the premises “[t]o do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards”.

13. Section 1.4 of the EPA Act provides definition and states “building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure)…”.

14. The parties request the court modify the DCO so that as a Compliance Order, the Applicant is to:

1. In accordance with section 4B.1 of Part 4 of Ku-ring-gai Development Control Plan 2024 (KDCP 2024), install wheel stops on the concrete slab/parking space in compliance with section 2.4.5.4 of AS 2890.1 (2004) Off Street Car Parking;

2. In accordance with section 24C.4 of Pt 24 of the KDCP 2015, install a 2000L rainwater tank on the Premises,

3. Within sixty days of the date of this judgment and orders.

9. As set out above, 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.

10. 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.

11. The Court orders:

1. The appeal is upheld.

2. The Development Control Order ref EPA0087/24 dated 23 September 2024 issued by the Respondent in relation to Lot 1 in Deposited Plan 24472 and known as 5 Kilpa Place, St Ives 2075 is modified pursuant to subss 8.18(4)(b) and (f) of the Environmental Planning and Assessment Act 1979 in accordance with Annexure A.

M Peatman

Acting Commissioner of the Court 

Annexure A (118 KB, pdf)

**********

Decision last updated: 27 May 2025