Lu v Burwood Council

[2021] NSWLEC 1727

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lu v Burwood Council [2021] NSWLEC 1727

Hearing dates:

Conciliation Conference on 5 and 26 October 2021

Date of orders:

25 November 2021

Decision date:

25 November 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

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 Court orders that terms of the Development Control Order issued by the Respondent to the Applicant under s 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 and dated 7 June 2021 in relation to premises at Lot B DP 33503, 45 Wentworth Road, Strathfield NSW 2135 are modified in accordance with the modified order dated today being Annexure A hereto.

3) The Court notes the agreement between the parties that there be no order as to costs with the intent that each party bear its own costs.

Catchwords:

APPEAL AGAINST ORDER – Cease use of building – works carried out other than in accordance with development consent – occupation without occupation certificate – conciliation – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.18. 9.34, 9.35, Sch 5

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

Jia Xi Lu (Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Schneider (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2021/185112

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.18 Environmental Planning and Assessment Act 1979 (EP&A Act) against a Development Control Order (order) dated 7 June 2021 being Order 1 in Part 1 of the Table to Schedule 5 of the EP&A Act pursuant to ss 9.34 and 9.35 of the EP&A Act in respect of the land being Lot B in Deposited Plan 33503 known as 75 Wentworth Road Strathfield (site).

2. The order required the Applicant to cease work on the site other than work in accordance with Development Consent 168 of 2013 (consent) and to cease occupying the newly constructed building at the rear of the site until such time as an occupation certificate is obtained.

3. The circumstances which gave rise to the order were that the works had been carried out otherwise than in accordance with the consent and the rear newly constructed part of the building on the site was being occupied without an occupation certificate having been granted.

4. The consent authorised minor changes to an existing building on the site which is a heritage item and the construction of a new building to the rear of the site. The whole of the buildings was approved for use as a boarding house.

5. On 5 October 2021 I conducted a conciliation pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act). An agreement in principle was reached although it was necessary that amended plans be prepared to reflect the agreement and which the Council would need to review. The conciliation was adjourned to 26 October 2021 at which time the agreement in principle was confirmed. The agreement was that the order be amended to reflect restorative work to be carried out.

6. In the event an agreement pursuant to s 34 of the Court Act was filed by the parties on 5 November 2021 giving effect to the agreement in principle.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

8. The parties’ agreement involves the Court exercising the function under s 8.18(4)(b) of the EP&A Act to modify the order. I am satisfied by reference to its terms that the proposed order is one which is capable of modification. I am satisfied that the building is being used in contravention of a planning approval and therefore there is power to issue the order.

9. 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.

10. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

11. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act1979, the Court orders that terms of the Development Control Order issued by the Respondent to the Applicant under s 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 and dated 7 June 2021 in relation to premises at Lot B DP 33503, 45 Wentworth Road, Strathfield NSW 2135 are modified in accordance with the modified order dated today being Annexure A hereto.

3. The Court notes the agreement between the parties that there be no order as to costs with the intent that each party bear its own costs.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (360621, pdf)

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Decision last updated: 25 November 2021