Hughan v Willoughby City Council

[2023] NSWLEC 1734

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hughan v Willoughby City Council [2023] NSWLEC 1734

Hearing dates:

Conciliation conference on 6 and 20 November 2023

Date of orders:

05 December 2023

Decision date:

05 December 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, Development Control Order No 3579 as issued by the respondent to the applicant dated 23 May 2023, comprising Order No 3 – Demolish Works Order and an Order No 10 – Restore Works Order, is substituted with a development control order in the terms set out in Annexure A, being an order that the respondent as the relevant enforcement authority could have given.

Catchwords:

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

Legislation Cited:

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

Land and Environment Court Act 1979, ss 17, 34

Willoughby Local Environmental Plan 2012

Texts Cited:

Australian Buildings Codes Board, National Construction Code, August 2022

Category:

Principal judgment

Parties:

Geoffrey Hughan (First Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Spizzo (Solicitor) (Applicants)
J Merlino (Solicitor) (Respondent)

Solicitors:
Alice Spizzo Advisory (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/170750

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (No 3579 dated 23 May 2023) issued by the respondent under s 9.34(1) and Pt 1 of Sch 5 of the EPA Act (DCO) to the applicant in relation to land identified as Lot 3 in Deposited Plan 322522, known as 2 Clafton Avenue, Northbridge (Site). The DCO comprised Order No 3 – Demolish Works Order, which required the demolition and removal of unauthorised masonry walls constructed without approval, and Order No 10 – Restore Works Order, which required the restoration of the balustrade to the pre-existing configuration subject to compliance with the relevant provisions of the National Construction Code 2022.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Site is zoned R2 Low Density Residential under the Willoughby Local Environmental Plan 2012 (WLEP).

4. The Site is owned by the applicant.

5. At the time the DCO was issued, the applicant had constructed:

1. brick masonry walls on the northern and western sides of the terrace above the existing garage (in place of metal balustrades that had been approved under a previous consent); and

2. a second masonry wall adjacent to the western wall of the terrace above the existing garage, intended to support a planter box (Internal Western Wall).

6. It was the respondent’s contention that all of these masonry walls:

1. were constructed without consent and were unlawful structures;

2. were incompatible with the desired future character of the streetscape and locality;

3. did not adequately meet setback performance criteria and objectives, creating unacceptable adverse amenity impacts to neighbouring properties;

4. were inappropriate in height, creating adverse amenity impacts to neighbours;

5. raised safety concerns particularly in respect of their alleged “climbability” and ability of objects to pass through the gaps.

7. The respondent issued the DCO to the applicant on 23 May 2023 pursuant to s 9.34(1) and Pt 1 of Sch 5 of the EPA Act.

8. The applicant commenced Class 1 proceedings on 29 May 2023, being within the time period specified in s 8.18(3) of the EPA Act.

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 6 and 20 November 2023. I presided over the conciliation conference.

10. The agreement reached is for the DCO to be substituted with a different development control order. The substituted order requires:

1. the partial demolition of the brick masonry wall erected on the western side of the terrace above the existing garage so that it is of a consistent height with the northern wall;

2. the painting of the external faces of the northern and western wall; and

3. the height of the Internal Western Wall to increase so as to comply with the “non-climbability” provisions of the National Construction Code for balustrades.

Jurisdictional considerations

11. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders substituting the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

12. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control 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.

13. It is clear that the Court has power to substitute a development control order pursuant to s 8.18(4)(c) of the EPA Act.

14. I am satisfied the DCO should be substituted for a new development control order on the basis that the design amendments agreed between the parties resolve the respondent’s concerns in relation to the unauthorised structures. However, those agreed design amendments only require the partial demolition of some of the unauthorised works the subject of the original DCO. As the parties agree that there is no consent on foot in relation to the unauthorised works that are agreed to be partially demolished, the development control order now proposed to be substituted by the Court is in accordance with s 9.34(1) and Pt 1 of Sch 5 of the EPA Act.

15. 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.

16. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, Development Control Order No 3579 as issued by the respondent to the applicant dated 23 May 2023, comprising Order No 3 – Demolish Works Order and an Order No 10 – Restore Works Order, is substituted with a development control order in the terms set out in Annexure A, being an order that the respondent as the relevant enforcement authority could have given.

N Targett

Acting Commissioner of the Court

170750.23 Annexure A

**********

Amendments

11 December 2023 - Amendment to typographical error on coversheet

Decision last updated: 11 December 2023