HYZ No 2 Pty Ltd v Liverpool City Council

[2019] NSWLEC 1107

Land and Environment Court

New South Wales

Medium Neutral Citation:	HYZ No 2 Pty Ltd v Liverpool City Council [2019] NSWLEC 1107
Hearing dates:	Conciliation conference on 6 March 2019
Date of orders:	18 March 2019
Decision date:	18 March 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [14] below
Catchwords:	DEVELOPMENT CONTROL ORDER: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	HYZ No 2 Pty Ltd (Applicant) Liverpool City Council (Respondent)
Representation:	Solicitors: A Sissian, Thomson Geer (Applicant) C Drury, Sparke Helmore (Respondent)
File Number(s):	2017/370852
Publication restriction:	No

Judgment

1. COMMISSIONER: On 28 September 2005, the Court granted a development consent to the applicant (DA No 498/04) for the construction of a multi storey residential flat building over basement car parkIng on land located at 13 Bigge Street, Liverpool (the consent).

2. The consent was subject to a requirement that the applicant would retain the heritage listed bungalow situated at 13 Bigge Street (the heritage item).

3. On 18 August 2008, the heritage item was impacted by a fire which caused extensive damage to the roof, roof structure and internal components.

4. On 9 December 2016, the applicant made an application to the Council for the adaptive reuse of the heritage item as a café. The application was approved on 22 May 2017.

5. On 9 November 2017, the Council received two complaints in relation to some demolition works being undertaken on the heritage item. In response to these complaints, a development control officer from the Council and a heritage officer attended the site to investigate. On 9 November 2017, the Council issued an order to the owner of the land under Item 3(b) to the Table to s 121B of the Environmental Planning and Assessment Act 1979 (EPA Act) (the Order) requiring the work to the heritage item to cease. It was asserted that the demolition works being carried out on the heritage item were unauthorised and contrary to the development consents issued by the Council.

6. The order was issued as an emergency order and by its terms required the landowner to: “…cease the demolition and any other activity associated with the demolition of the heritage listed bungalow on-site known as 13 Bigge Street, Liverpool.”

7. On 7 December 2017, pursuant to s 121ZK the EPA Act the applicant filed this Class 1 appeal against the order dated 9 November 2017.

8. Section 8.18 of the EPA Act deals with the Court’s power on appeals concerning orders. It provides:

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.

(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.

9. 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 6 March 2019. I presided over the conciliation conference.

10. 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.

11. 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 functions under s 8.18(4)(a) of the EPA Act to revoke the terms of the order in accordance with the parties’ signed s34 agreement.

12. 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. On appeal I have power to revoke the order under s 8.18(4)(a) of the EPA Act in this case.

13. 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.

14. The Court orders:

1. The appeal is upheld.

2. The emergency order dated 9 November 2017 issued to the Applicant by the Respondent pursuant to Part 6 Division 2A of the Environmental Planning and Assessment Act 1979 is revoked.

3. No order as to costs, with the intention that each party pays their own costs.

15. The Court notes that the parties have entered into a confidential agreement, a copy of which is placed on the Court file and marked “B”. That agreement does not form part of the orders of the Court.

………………………..

S Dixon

Senior Commissioner of the Court

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Decision last updated: 18 March 2019