Klar v Ku-ring-gai Council

[2021] NSWLEC 1604

Land and Environment Court

New South Wales

Medium Neutral Citation:

Klar v Ku-ring-gai Council [2021] NSWLEC 1604

Hearing dates:

Conciliation conference on 8 October 2021

Date of orders:

19 October 2021

Decision date:

19 October 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order given by the Respondent to the Applicant on 5 February 2021 is modified in accordance with the development control order annexed and marked with the letter “A”.

Catchwords:

APPEAL – development control order - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Joseph Klar (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
G Farland (Respondent)

Solicitors:
Fishburn Watson O’Brien (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2021/62204

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act1979 (EPA Act) being an appeal against a development control order dated 5 February 2021 issued by the Respondent to the Applicant pursuant to s 9.34 of the EPA Act being Orders 1, 3 and 11 in Sch 5 of the EPA Act (DC Order) in respect of the land known as 15A Beaconsfield Parade, Lindfield legally described as Lot Y DP347595 (the Site).

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 was held on 8 October 2021. 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 DC 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 DC Order.

5. 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 to be the terms of s 8.18(4) of the EPA Act to modify a DC Order. The power of the Court is provided in this section as follows (with emphasis added):

8.18   Appeals concerning orders (cf previous s 121ZK)

(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. 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.

7. 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.

8. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order given by the Respondent to the Applicant on 5 February 2021 is modified in accordance with the development control order annexed and marked with the letter “A”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (590623, pdf)

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Decision last updated: 19 October 2021