Kaufmann v Woollahra Municipal Council

[2022] NSWLEC 1091

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kaufmann v Woollahra Municipal Council [2022] NSWLEC 1091

Hearing dates:

Conciliation conference on 14 February 2022

Date of orders:

22 February 2022

Decision date:

22 February 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of Developmental Control Order 271/2020, being an Order No. 11, issued by the Respondent to the Applicant on 16 February 2021 as follows:

The terms of the Development Control Order are:

Comply with Development Consent DA599/2000 and Construction Certificate dated 11.10.00 drawn by Tony Laurent Architects.

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – modifying the order - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18, 9.34

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Robert Kaufmann (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
Dr S Berveling (Applicant)
J Ede (Solicitor) (Respondent)

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

File Number(s):

2021/74469

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the Development Control Order 271/2020, in relation to 35 Glenview Street Paddington legally described as Lot 2 in Deposited Plan 198916 (the Site), being Order 11 under s 9.34 and Sch 5 of the EPA Act issued by the Respondent on 16 February 2021 as follows:

1. Comply with Development Consent DA599/2000 and Construction Certificate dated 11 October 2000 drawn by Tony Laurent Architect.

2. Remove the unauthorised sliding doors that lead onto the roof terrace on the first floor plans in the Construction Certificate dated 11 October 2000 drawn by Tony Laurent Architect.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 February 2022. I have presided over the conciliation conference.

3. 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 the Court upholding the Appeal and modifying the development control order.

4. 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 under s 8.18(4)(b) of the EPA Act to modify the development control order.

5. 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. I form this opinion of satisfaction having read the Joint Expert Report prepared by Phillip North for the Applicant, and George Lloyd for the Respondent filed 8 February 2022, and noting the agreement between the experts on page 2 that the “development consent DA/599/2000 did not delete or otherwise prohibit the sliding glass openings in question”

6. 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.

Orders:

7. The Court orders:

1. The appeal is upheld.

2. Pursuant to s8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of Developmental Control Order 271/2020, being an Order No. 11, issued by the Respondent to the Applicant on 16 February 2021 as follows:

The terms of the Development Control Order are:

1. Comply with Development Consent DA599/2000 and Construction Certificate dated 11.10.00 drawn by Tony Laurent Architects.

2.    Remove the unauthorised sliding doors that lead onto the roof terrace on the first floor and install windows as per the Development Consent DA599/2000 and the first floor plans in the Construction Certificate dated 11.10.00 drawn by Tony Laurent Architect.

E Espinosa

Commissioner of the Court

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