J. Solomon Pty Ltd v Sutherland Shire Council

[2021] NSWLEC 1793

Land and Environment Court

New South Wales

Medium Neutral Citation:

J. Solomon Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1793

Hearing dates:

Conciliation conference on 16 December 2021

Date of orders:

22 December 2021

Decision date:

22 December 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

Refer to orders below at [15]

Catchwords:

APPEAL – development control order – deck erected without required development consent – demolish works order – conciliation conference – agreement – substituted order

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18, 9.34, Schedule 5

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Sutherland Local Environmental Plan 2015

Category:

Principal judgment

Parties:

J. Solomon Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Rose (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2021/195250

Publication restriction:

Nil

Judgment

The Order the subject of the appeal

1. COMMISSIONER: This is an appeal against a development control order (Order) given to the Applicant by Sutherland Shire Council (Council) on 10 June 2021. The Order concerns a steel framed covered deck (Deck) attached to the rear of the house situated on Lot 3 DP 621363 and known as 63 Bignell St Illawong (Land).

2. The Order requires the demolition and removal of the Deck. 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 Part 1 of Schedule 5 to the EPA Act. Item 3 in the table allows a development control order to be issued as a “demolish works order” where a building requiring a planning approval is erected without approval. Such an order can be given to the owner of the land on which the building has been erected.

The planning controls

3. The Deck, being a structure, is a building for the purposes of the EPA Act. The Land is within Zone E3 – Environmental Management under the Sutherland Local Environmental Plan 2015 (LEP). The erection of the Deck is permissible with development consent on land within that zone. However, the Deck was erected without development consent having been obtained.

4. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) permits the construction of decks as exempt development in certain circumstances. One circumstance in which the erection of a deck is not exempt, however, is if it is constructed on land within a foreshore area. The Codes SEPP (cl 1.5) defines “foreshore area” as follows:

foreshore area means the land between a foreshore building line and the mean high water mark of an adjacent waterbody (natural).

5. The expression “foreshore building line” is also defined in the Codes SEPP (cl 1.5) as follows:

foreshore building line means the foreshore building line identified by—

(a)  a development control plan adopted before 12 December 2008, or

(b)  an environmental planning instrument.

6. The LEP identifies a foreshore building line on the Land. The Deck extends beyond the foreshore building line shown on the LEP Foreshore Building Line Map resulting in most of the Deck being within the foreshore area. The Deck is therefore not exempt development under the Codes SEPP.

7. Clause 6.9(2)(d) of the LEP provides that development consent must not be granted for the erection of a building on the foreshore area unless the levels, depth or other exceptional features of the site make it appropriate to do so. The parties agree that the Land has a number of exceptional features, including the existence of a large rock outcrop, which make the construction of a deck in the modified form proposed by the amended Order appropriate.

The appeal

8. The Applicant is the owner of the Land and has appealed against the Order pursuant to s 8.18 of the EPA Act.

9. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an 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.

10. The appeal was listed for hearing for two days commencing on 16 December 2021. Shortly before the commencement of the hearing, the parties informed the Court that an agreement had been reached on the modification of the Order in terms acceptable to both parties. At the parties’ request, the hearing was adjourned and the matter was listed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which took place on 16 December 2021. 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 signed agreement was filed with the Court on 16 December 2021 and is supported by a Jurisdictional Statement sent to the Court on the same day.

The proposed amended order

11. The agreement reached is for the order to be modified so that

1. the Deck is substantially reduced in size and height; and

2. landscaping works are to be carried out in accordance with landscape plans which have been prepared for the Applicant and which are acceptable to the Council.

The Court’s jurisdiction

12. I am satisfied that the decision to make orders to modify the Order 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). This is because 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, and s 8.18(4)(f) allows the Court to make such other order with respect to the development control order as the Court thinks fit.

13. Having reached the state of satisfaction that the decision the subject of the parties’ agreement is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to dispose of the proceedings in accordance with the decision.

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

15. The Court Orders:

1. The Appeal is upheld.

2. The Order issued by the Respondent dated 10 June 2021, pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 is amended as follows:

1. Under the heading “To do what” delete “Demolish and remove the steel framed covered deck attached to the rear of the subject property and return the area to its original state in accordance with the latest approval being DA17/0065” and insert instead the following:

1. Partly demolish the existing steel framed covered deck and metal awning over the deck attached to the rear of the subject property, and

2. The owner is to carry out the works including reconstruction of the deck and all landscaping works (Works) in accordance with the following Landscaping Plans contained in Annexure F of the Joint Experts’ Report dated 6 December 2021 prepared by Lyndall Wynne and Renee Arrowsmith (Landscape Plans):

Plan Number	Name	Prepared by	Date
21-4571 L02 Rev B	Landscape Plan	Zenith Landscape Designs	01.12.2021
21-4571 L03 Rev B	Landscape Plan	Zenith Landscape Designs	01.12.2021
21-4571 L04 Rev B	Landscape Plan	Zenith Landscape Designs	01.12.2021
21-4571 L05 Rev B	Landscape Plan	Zenith Landscape Designs	01.12.2021

3. Within 2 weeks following completion of the Works, the owner is to provide the Council with:

1. certification that the deck is in accordance with the Landscape Plans and that it is fit for purpose by a suitably qualified engineer to Council, and

2. certification of the landscape works by a suitably qualified landscape architect or landscape designer confirming that the landscaping has been carried out in accordance with the Landscape Plans.

4. The landscaping component of the Works is to be carried out pursuant to the Landscape Plans and the landscaping shall be maintained for a period of 12 months following completion of the Works, with any dead or dying plants to be replaced.

5. If the land owner has difficulty in complying with the timeframe provided in Order 2 above and the Period for Compliance set out below, the land owner should approach Council and request an extension of time. Any request reasonably made will be granted by Council, for a timeframe extension of up to 3 months.

2. Delete the heading “Period of Compliance” and the paragraph beneath that heading and insert instead:

Period for Compliance

All Works to give effect to the Order shall be completed within 6 months from the date of this order.

……………………….

A Bradbury

Acting Commissioner of the Court

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Decision last updated: 22 December 2021