Katz v Waverley Council

[2025] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation:

Katz v Waverley Council [2025] NSWLEC 1193

Hearing dates:

Conciliation conference on 28 January, 13 and 21 February 2025.

Date of orders:

03 April 2025

Decision date:

03 April 2025

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 the Court substitutes Development Control Order (Ref NO-5728) issued by the Respondent to the First and Second Applicants on 11 July 2024 with the Development Control Order in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Pt 2, Div 8.5, Sch 5, Pts 1, 6, 7, cll 8, 15

Land and Environment Court Act 1979, ss 17, 34, Pt 3, Div 1

Waverley Environmental Plan 2012

Category:

Principal judgment

Parties:

Leanne Katz (First Applicant)
Grant Katz (Second Applicant)
Waverley Council ABN 12 502 583 608 (Respondent)

Representation:

Counsel:
P Murray (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2024/287429

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant appeals the Development Control Order, being Order No 3 – Demolish Works Order and Order 10 – Restore Works Order dated 11 July 2024 ref NO-5726 (DCO) issued by Waverley Council (Council) in relation to the property known as 39 Frederick Street, North Bondi being the whole of the land in Lot 2 Deposited Plan 523580 (Premises).

2. The DCO was issued pursuant to s 9.34 and Sch 5 Pt 1 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The terms of the DCO were:

“(1) Demolish and appropriately remove the timber-deck and stairway leading to the deck at the rear of the premises.

(2) Construct or install a stairway or series or flight of steps to provide access to the rear of the premises.

(3) The stairway or series or flight of steps must be located at least 450mm from each lot boundary and not interfere with the functioning of existing drainage features or the natural surface flow of water.

(4) Notify Council when all things specified to the order are complete.

(4) Ensure all works comply with the National Construction Code, Volume 2 (BCA) and relevant standards and regulations with the associated works.”

4. The appeal falls within Class 1 of the Court’s jurisdiction pursuant to s 17(d) Pt 3 Div 1 of the Land and Environment Court Act 1979 (LEC Act).

5. The statutory power or function to be exercised in determining the proceedings are Pt 2 Div 8.5 s 8.18(4) of the EPA Act:

(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.

6. The premises are known as 39 Frederick Street, North Bondi, and is part of two semi-detached dwelling houses. The locality is characterised by a variety of housing including dwelling houses, semi-detached dwelling houses and older residential flat buildings.

7. Under Waverley Local Environmental Plan 2012 the land upon which the premises are located is zone R2 – Low Density Residential; and directly to the East abounds land zoned R3 – Medium Density Residential.

8. The DCO arose as a result of a telephone complaint and after an inspection of the premises by a Council officer.

9. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 28 January 2025, 13 and 21 February 2025. 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. This decision involved upholding the appeal and exercising the Court’s power under s 8.18(4)(c) of the EPA Act to substitute the DCO in Annexure A.

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 function as set out in [10] above. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied:

1. On 31 May 2024 Council issued a Notice of Intention to give the DCO pursuant to cl 8 Pt 6 Sch 5 of the EPA Act.

2. Mr Jaku, solicitor at that time for the Applicant, made representations to Council against the making of the DCO on 14 June 2024.

3. Council considered Mr Jaku’s representations, and issued the DCO on 11 July 2024 in accordance with cl 15 Pt 7 Sch 5 of the EPA Act.

4. On 6 August 2024 the Applicants commenced their appeal in this Court seeking revocation or other modification of the DCO.

5. The Applicants are the owners of the premises and exercised their right of appeal to the Court pursuant to s 8.18(1) and in the time provision provided in s 8.18(3)(a).

6. The parties negotiated on a without prejudice basis and in good faith, and reached an agreement to substitute the DCO with the DCO in Annexure A, the substance of which is as follows:

“(1) A privacy screen is to be erected on the southern side of the rear deck at No. 39 Frederick Street, North Bondi as follows:

•   The screen is to be erected with lightweight materials which may include (without limitation) non-transparent glass, non-transparent Perspex, wooden slats.

•   The screen is to be at least 1.6metres above the height of the existing rear deck finished floor level and run from the drain pipe on the western wall of the dwelling to within 10 cm on the inside of the existing gate on the rear deck.

Note:   In the event that the balustrading around the perimeter of the deck is altered and/or replaced to accommodate the privacy screen such altered and/or replaced balustrading is to comply with the National Construction Code, Volume 2 (BCA) and relevant standards and regulations with the associated works.

Period for compliance:

The period for compliance for this Development Control Order is 180 days from the time of service of the development control order.”

12. In accordance with the facts set out above, 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.

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)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. The Court notes that the parties’ have agreed that each party is to bear its own costs of the proceedings.

15. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 the Court substitutes Development Control Order (Ref NO-5726) issued by the Respondent to the First and Second Applicants on 11 July 2024 with the Development Control Order in Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A (227958, pdf)

**********

Decision last updated: 03 April 2025