Hoare v Ku-ring-gai Council

[2025] NSWLEC 1547

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hoare v Ku-ring-gai Council [2025] NSWLEC 1547

Hearing dates:

Conciliation conference 30 July 2025

Date of orders:

30 July 2025

Decision date:

30 July 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), Development Control Order EPA0118/24 issued by Ku-ring-gai Council on 16 October 2024 is modified in the terms set out in the Modified Development Control Order at Annexure A.

Catchwords:

APPEAL – development control order – demolish works order and restore works order – works to heritage item – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979 (NSW), s 34

Category:

Principal judgment

Parties:

Amy Louise Hoare (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
N Hammond (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Hones Lawyers Pty Ltd (Respondent)

File Number(s):

2024/409459

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development control order issued by Ku-ring-gai Council on 16 October 2024 (the order) following the carrying out of works to a heritage item at 24 Bancroft Avenue, Roseville. The order was issued 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. The order is both a demolish works order and a restore works order, issued pursuant to Items 3 and 10 of Pt 1 of Sch 5. It requires the applicant to demolish and remove newly installed parquetry and wainscoting, and remove unauthorised works, as well to restore the building to its previous appearance and condition. The applicant appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the order so that it involves a restore works order requiring the carrying of agreed works, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 30 July 2025. I presided over the conciliation conference.

3. 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 final signed agreement was filed the same date. The agreement is for the order to be modified so that it is confined to a restore works order requiring the reinstatement of the original polished doors, architraves and skirting in the entry hall, the internal walls of the premises and the external paint scheme, to the condition that they were in before works to the heritage item occurred.

4. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms 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).

5. The modified order remains a restore works order, and Item 10 of Pt 1 of Sch 5 allows a development control order to be issued as a restore works order to the owner of premises if unauthorised works have been carried out, requiring the premises to be restored to the condition in which they were before the unlawful works occurred. The applicant is the owner of the premises, and it is common ground that works to the heritage item occurred without development consent, in circumstances where development consent was required. The statutory requirements for the issue of a restore works order, pursuant to s 9.34 and Item 10 of Pt 1 of Sch 5 of the EPA Act, are therefore met.

6. In addition, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are 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.

7. I am satisfied that the decision to make orders to modify the order in the terms agreed to by the parties 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), for the reason that 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.

8. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

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

Final outcome

10. The Court notes that the applicant has undertaken to plant a new tree in the front setback of the property. The tree is to be of the species Nyssa Sylvatica (Tupelo) with a minimum 45 litre pot size and at a minimum 6.0m setback from any dwelling.

11. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), Development Control Order EPA0118/24 issued by Ku-ring-gai Council on 16 October 2024 is modified in the terms set out in the Modified Development Control Order at Annexure A.

J Gray

Commissioner of the Court

Annexure A (607 KB, pdf)

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