Manly Golf Club Limited v Northern Beaches Council

[2023] NSWLEC 1215

Land and Environment Court

New South Wales

Medium Neutral Citation:

Manly Golf Club Limited v Northern Beaches Council [2023] NSWLEC 1215

Hearing dates:

Conciliation conference on 17 March, 6 April, 14 April 2023

Date of orders:

05 May 2023

Decision date:

05 May 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

1) The Appeal is upheld.

2) The development control order issued by the Respondent to the Applicant on 4 October 2022 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979. The order, as modified, is set out in Annexure A.

Catchwords:

APPEAL – Development Control Order – Demolish Works Order – Restore Works Order – conciliation conference – agreement between the parties – Demolish works order modified – orders

Legislation Cited:

Coastal Management Act 2016

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, 9.35, Sch 5 Pt 1

Land and Environment Court Act 1979, s 34

Manly Local Environmental Plan 2013, cl 3.3

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Pt 2, Div 1, Subdiv 15

Category:

Principal judgment

Parties:

Manly Golf Club Limited trading as Manly Golf Club (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Walker Hedges & Co (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2022/336130

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise as a result of a Development Control Order, number EPA2021/0285 (the Order), issued by Northern Beaches Council (the Respondent) to Manly Golf Club Limited (the Applicant). The Order included a Demolish Works Order and a Restore Works Order that pertain to unauthorised works undertaken at and around the eighth tee of the premises at Manly Golf Club, 38-40 Kenneth Road, Manly. The premises are legally described as Lot 1/DP 137168, Lot 10 Sec 3/DP 1177, Lot 6 Sec 4/DP 1177, DP 55906, Lot 2/DP 535058, and Lot 30/DP 649787.

2. The unauthorised works include construction of two sandstone block retaining walls, associated earth fill, removal of native vegetation, as well as changes to the ground level and planting of turf along a section of Manly Lagoon which traverses the north-western portion of the Manly Golf Club.

3. The portion of the site that contains the unauthorised works is within an environmentally sensitive area for the purposes of cl 3.3 of the Manly Local Environmental Plan 2013 (MLEP), being land within the coastal wetlands area within the meaning of the Coastal Management Act 2016. The site also contains native vegetation which has been identified as Swamp Oak Flood Floodplain Forest Endangered Ecological Community.

4. The Order was issued by the respondent to the applicant, who is the owner of the premises, pursuant to s 9.35 Division 9.3 and Sch 5 Pt 1 of the Environmental Planning and Assessment Act1979 (EPA Act). Pursuant to EPA Act s 9.34(1)(a), a development control order may be given as a general order in accordance with the table in Sch 5 Pt 1.

5. These Class 1 proceedings have been brought to the Court pursuant to s 8.18 of the EPA Act. The powers set out in s 8.18(4) 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.

6. 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 17 March, and subsequently on 6 April and 14 April 2023. I presided over the conciliation conference.

7. After 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 amending the Order in accordance with the parties’ agreed terms (the amended Order). The amended Order requires partial demolition of the retaining walls, and further works to restore relevant aspects of the area to the condition it was in prior to the unauthorised works.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to modify the development control order. 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 they have been satisfied. From this I note the following:

1. The premises are zoned RE2 Private Recreation pursuant to the MLEP.

2. Pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Pt 2, Div 1, Subdiv 15, the building works are not considered exempt development as the premises are within an environmentally sensitive area.

3. The parties agree that the construction of the retaining walls and associated earthworks require development consent and that none was obtained. The parties further submit, and I agree that the retaining walls are ‘structures’ which, pursuant to the definition in the EPA Act, constitutes a ‘building’.

4. The EPA Act Sch 5 Pt 1 Item 3 allows a Demolish Works Order to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”. The amended Order requires partial demolition of the retaining walls, which the parties agree required approval and were erected without this approval.

5. EPA Act Sch 5 Pt 1 Item 10 allows for a Restore Works Order to be issued to restore premises to their previous condition if an unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out. The parties submit, and I accept, that the retaining walls are the subject of a Demolish Works Order and other unauthorised works (earthworks and vegetation clearing) associated with the erection of the retaining walls were carried out. The amended Order requires restoration of the premises to the condition they were in before the unauthorised works occurred.

10. Subsequently, the amended Order is an order that can be made pursuant to Item 3 and Item 10 of Schedule 5 to the EPA Act. Accordingly, I am satisfied that pursuant to the provisions of s 8.18(4)(b) and (f), I have power to modify the development control order in accordance with the parties’ decision.

11. For these reasons 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.

12. 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.

13. The Court orders:

1. The appeal is upheld.

2. The development control order issued by the Respondent to the Applicant on 4 October 2022 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979. The order, as modified, is set out in Annexure A.

E Washington

Acting Commissioner of the Court

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Annexure A

Decision last updated: 05 May 2023