Ipoh Property Pty Limited v The City of Sydney Council

[2019] NSWLEC 1100

Land and Environment Court

New South Wales

Medium Neutral Citation:	IPOH Property Pty Limited v The City of Sydney Council [2019] NSWLEC 1100
Hearing dates:	Conciliation conference on 1 March 2019
Date of orders:	13 March 2019
Decision date:	13 March 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [11] below
Catchwords:	APPEAL: development control order – removal of structures – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Milfair Pty Ltd trading as The Arthouse Hotel v The Council of the City of Sydney [2018] NSWLEC 1297
Category:	Principal judgment
Parties:	IPOH Property Pty Limited (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitors: E Flemming, Swabb Attorneys (Applicant) T Ward, Council of the City of Sydney (Respondent)
File Number(s):	2017/386622
Publication restriction:	No

Judgment

1. COMMISSIONER: This judgment concerns a Class 1 appeal in respect of a development control order (HBC/2017/51) issued by the Council on 27 November 2017 (the order). The order was issued to IPOH Property Pty Limited, the applicant in the appeal. The order relates to unauthorised works within the building known as The ArtHouse Hotel on part of the land at 275 Pitt Street, Sydney (Lot 111 in DP 1014769).

2. The order was issued under the then s 121B of the Environmental Planning and Assessment Act1979 (EPA Act) and sought the removal of unauthorised building works within 70 days from the issue of the order. The unauthorised building works particularised in the order included 5 x internal partitions, yellow/gold overhead lighting tracks, and illuminated signage.

3. The applicant did not remove the structures but instead lodged a Class 1 appeal, within 28 days of the date of the order, seeking a revocation of the order pursuant to s 8.18(3) of the EPA Act.

4. 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.

5. The decision of the Court in Milfair Pty Ltd trading as The Arthouse Hotel v The Council of the City of Sydney [2018] NSWLEC 1297 is of relevance to these proceedings. In that matter the Court made orders in relation to specific agreed works to be carried out to the ArtHouse Hotel and following completion the issue of a building certificate by the respondent. Those works and the issue of the building certificate has been completed (BC2017/100 issued 13 February 2019).

6. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). 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 would be acceptable to them. The terms of the decision as agreed by the parties are as follows:

1. The appeal is upheld;

2. Orders that Order HBC/2017/51 issued by the Respondent on 27 November 2017 is revoked;

3. Each party is to bear their own costs of the proceedings.

7. 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 order.

8. The jurisdictional prerequisites that must be satisfied before this function can be exercised have been addressed. I am satisfied that the appeal was made in time.

9. Consequently, 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. Order HBC/2017/51 issued by the Respondent on 27 November 2017 is revoked;

3. Each party is to bear their own costs of the proceedings.

……………………….

D M Dickson

Commissioner of the Court

Decision last updated: 13 March 2019