Grimshaw v Ku-ring-gai Council

[2023] NSWLEC 1635

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grimshaw v Ku-ring-gai Council [2023] NSWLEC 1635

Hearing dates:

Conciliation Conference on 18 July 2023

Date of orders:

26 October 2023

Decision date:

26 October 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act1979, the Development Control Orders the subject of this appeal are modified in the terms of the modified Development Control Order annexed and marked A.

Catchwords:

MISCELLANEOUS APPEAL – demolish works order – restore works order – state heritage item – conciliation conference – agreement between the parties – modified order

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.35, Div 9.3, Sch 5

Ku-ring-gai Local Environmental Plan 2015

Land and Environment Court Act 1979, ss 34, 17

Category:

Principal judgment

Parties:

Stuart Ian Grimshaw (First Applicant)
Anneliese Rae Grimshaw (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicants)
M Staunton (Respondent)

Solicitors:
Piper Alderman (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/10172

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 17(d) of the Land and Environment Act 1979 (LEC Act) from a Development Control Order (DCO) issued by Ku-ring-gai Council (the Council) to the Applicants over land at 29 Telegraph Rd, Pymble, known as Lot 1 DP 1205319 (the Land).

2. Erected on the land in the 1930s is a dwelling house known as “Coppins” and related improvements. The Land, with its improvements, is listed on the NSW State Heritage Register (SHR # 01443) and listed as a heritage item under the Ku-ring-gai Local Environmental Plan 2015.

3. The DCO was issued on 16 December 2022 under Div 9.3 and Sch 5 of the EPA Act being an Order No 3 (Demolish Works Order) and an Order No 10 (Restore Works Order).

4. The DCO was given as a consequence of an inspection being carried out by the Respondent’s officers which revealed unauthorised works had taken place within the dwelling and on the Land. These works involved, inter alia, the removal and alteration of a number of original features of the dwelling and external improvements including the removal of front entry doors, removal and replacement of fireplaces and mantles and the dismantling of a windmill.

5. The DCO was given by the Council exercising the powers of an enforcement authority after it heard and considered written representations made by the Applicants in response to receiving a Notice of Intention to give an order pursuant to cl 8 of Sch 5 of the EPA Act. As such, the prescribed procedures pursuant to Pts 4, 5, 6 and 7 of Sch 5 of the EPA Act were complied with to validate the lawful giving of the DCO.

The Parties

6. The Applicants in these proceedings are Stuart Ian Grimshaw and Anneliese Rae Grimshaw. The Applicants are the owners of the Land. As the recipients of the DCO, the Applicants have standing pursuant to s 8.18 of the Act to appeal.

7. The Respondent is Ku-ring-gai Council (Council) and is a “relevant enforcement authority” pursuant to s 9.35(1)(b) of the EPA Act which has discretionary power to give DCOs prescribed under Sch 5 of the EPA Act.

The Conciliation Conference

8. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on site and thereafter at Court. I presided over the conciliation conference.

9. Following the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, being a decision that the Court could have made in the proper exercise of its functions. The parties have agreed that the DCO the subject of the appeal is to be modified and for the Court to uphold the appeal and issue a modified development control order under s 8.18(4)(b) EPA Act. The modified order requires reinstatement of heritage items removed during the recent renovations and works to the State heritage listed dwelling house “Coppins” and on the Land. The modified order is at Attachment A.

10. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision which involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to make an order with respect to compliance with the DCO the subject of the appeal.

Jurisdictional Requirements

11. There are jurisdictional pre-requisites which require my satisfaction before the power to make an order under s 8.18(4)(b) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement filed on 20 September as follows.

12. The powers of the Court in exercising the functions of the enforcement authority to make the orders sought in the s 34 Agreement in the proper exercise of its functions under the EPA Act are 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

(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. (Emphasis added.)

13. The parties have agreed that the development control orders the subject of the appeal are to be modified and for the Court to issue a modified development control order under s 8.18(4)(b) EPA Act.

14. I am satisfied that the development control orders the subject of the appeal were validly issued by Council in compliance with the statutory procedural fairness requirements noted above at [5].

Conclusion

15. Taking into account the Jurisdictional Statement which I accept, the evidence before me, and my observations on site, I am satisfied that the DCO was lawfully issued, and there is no jurisdictional impediment to the Court upholding the appeal under s 17(d) of the LEC Act and making the proposed modified development control order under s 8.18(4)(b) EPA Act.

16. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, pursuant to ss 34(3)(a) and 34(b) LEC Act, I make the following orders.

Orders

17. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act1979, the Development Control Orders the subject of this appeal are modified in the terms of the modified Development Control Order annexed and marked A.

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 26 October 2023