Jam Pad Investments Pty Ltd v Central Coast Council

[2023] NSWLEC 1455

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jam Pad Investments Pty Ltd v Central Coast Council [2023] NSWLEC 1455

Hearing dates:

Conciliation conference on 10 August 2023

Date of orders:

16 August 2023

Decision date:

16 August 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development control Order No. 10 issued by the respondent to the applicant on 28 June 2022, under Schedule 5 of the Environmental Planning and Assessment Act 1979 (Act), is, pursuant to section 8.18(4)(c) of the Act, substituted with the amended Order No. 5 annexed hereto and marked ‘A’.

Catchwords:

APPEAL – development control order – restore works order – conciliation conference – agreement to substitute order for a repair order – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Div 9.3, Sch 5

Land and Environment Court Act 1979, s 34

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

Category:

Principal judgment

Parties:

Jam Pad Investments Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Lakis & Knight Solicitors and Barristers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/00203652

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant appeals against a development control order that was issued by Central Coast Council on 28 June 2022, which requires it to restore the dwelling at 1 Calais Road, Wamberal, to the state that it was in before unauthorised works occurred (the Order). 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 applicant appeals against the Order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which substitute the Order with an order for certain works to be carried out, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Order is issued pursuant to Div 9.3 of the EPA Act and Pt 1 of Sch 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Pt 1 of Schedule 5. Item 10 of Pt 1 of Sch 5 allows a Restore Works Order, one type of development control order, to be issued to the owner of the premises to “restore premises to the condition in which they were before unlawful building or other works occurred”. It can be issued in circumstances where unauthorised works have been carried out. It is not disputed by the applicant that unauthorised works have occurred on the property, with external works carried out to the dwelling house without development consent having been obtained and without those works being characterised as exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

3. 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 10 August 2023. I presided over the conciliation conference.

4. 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 on the same date, which supersedes a previous agreement that had been filed on an earlier date. The agreement is that the Order be substituted with a new order that requires that the applicant to carry out agreed works, which include works to the enclosed patio area and the retaining walls, and the removal of a garden bed.

The power to make orders in accordance with the agreement

5. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to substitute the Order with an 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).

6. The proposed order with which the Order is to be substituted is a Repair Order. Item 5 of Pt 1 of Sch 5 to the EPA Act allows a Repair Order to be issued to the owner of the building to “repair or make structural alterations to a building” in the following circumstances:

“The building is or is likely to become a danger to the public or is so dilapidated that it is prejudicial to the occupants, persons or property in the neighbourhood”.

7. The parties agree, and I accept, that the current state of the enclosed patio area, the garden bed, and the retaining walls, are likely to become a danger to the public and the occupants in a storm and/or erosion event, as they are located in an area susceptible to such events and have not been constructed to withstand those events. The structural alterations are therefore necessary in those circumstances.

8. Section 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.

9. I am satisfied that the power under s 8.18(4)(c) is sufficiently broad to enable the Court to make orders to substitute the development control order the subject of the appeal with a Repair Order in the terms agreed by the parties.

10. I am therefore satisfied that the decision to make orders to substitute the Order with a Repair Order is a decision that the Court can make in the proper exercise of its functions, for the reason that there is a statutory basis under Item 5 of Pt 1 of Sch 5 of the EPA Act to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to “substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given.”

11. I note also that, prior to the commencement of the conciliation conference, Ms Adraskelas spoke on behalf of Mr and Mrs Hill, who are neighbours to the land to which the order applies. There was nothing raised by Ms Adraskelas that dissuades me from the conclusion that the decision to substitute the Order with a Repair Order is a decision that the Court can make in the proper exercise of its functions.

12. 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)).

13. 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.

14. The Court notes that the Applicant undertakes to lodge a building information certificate within eight weeks of the date of these orders which addresses the following matters:

1. Retaining walls on the land which are not the subject of the order in Annexure A;

2. Internal configuration of the property, including provision of a laundry;

3. Entry portico to the southern side of the dwelling; and

4. Decking surrounding the dwelling.

15. The Court orders that:

1. The appeal is upheld.

2. Development control Order No. 10 issued by the respondent to the applicant on 28 June 2022, under Schedule 5 of the Environmental Planning and Assessment Act 1979 (Act), is, pursuant to section 8.18(4)(c) of the Act, substituted with the amended Order No. 5 annexed hereto and marked ‘A’.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 16 August 2023