Manning v Northern Beaches Council

[2025] NSWLEC 1172

Land and Environment Court

New South Wales

Medium Neutral Citation:

Manning v Northern Beaches Council [2025] NSWLEC 1172

Hearing dates:

Conciliation Conference on 30 and 31 October 2024

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

In proceedings No 2024/208191, the Court orders that:

(1) The appeal is upheld;

(2) The Development Control Order issued by the Respondent to the Applicant on 22 May 2024 under Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) is, pursuant to s 8.18(4)(b) of the EPA Act, modified in accordance with the Development Control Order at ‘Annexure A';

(3) Each party shall pay its own costs of these proceedings.

In proceedings No 2024/208248, the Court orders that:

(1) The appeal is upheld;

(2) Development consent is granted to Development Application No.DA2023/1346 for the use of the alterations and additions to the existing dwelling at 1180 Barrenjoey Road, Palm Beach NSW 2108, subject to the conditions at Annexure ‘A1’.

Catchwords:

APPEAL – Development Application – Development Control Order – unauthorised works on council land – conciliation conference – agreement between the parties – modified development control order

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.18, 9.34, Sch 5, Pt 1

Land and Environment Court Act 1979, ss 17, 34, 34AA

Pittwater Local Environment Plan 2014

Category:

Principal judgment

Parties:

Louise Manning (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
F Berglund (Respondent)

Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2024/208191
2024/208248

Publication restriction:

No

Judgment

1. COMMISSIONER: This judgment is in respect of two Class 1 appeals concerning the same land and the same parties. Although involving appeals under different sections of the Environmental Planning and Assessment Act 1979 (EPA Act), the two appeals were heard together and accordingly this judgment deals with both appeals. The Court has jurisdiction to hear and dispose of both appeals under s 17(d) of the Land and environment Court Act 1979 (LEC Act) and by virtue of s 34(1) LEC Act, both appeals are amenable to resolution through a s 34(3) LEC Act agreement.

2. The first appeal being proceedings No 2024/208191 is a Class 1 Miscellaneous appeal pursuant to s 8.18(1) of the EPA Act from a Development Control Order (DCO) issued by the Northern Beaches Council (the council) to the Applicant over land at 1180 Barrenjoey Road, Palm Beach NSW 2108, being Lot 13 in DP 1275411 (the Site).

3. The DCO sought to remedy unauthorised works, being a concrete path, garden beds and the like, carried out on the road reserve, which is council land, in front of 1180 and 1182 Barrenjoey Road. The full suite of works the subject of Council’s action to issue the DCO is set out in Annexure A at p 2 under ‘Reasons for Order’.

4. The second appeal being proceedings No 2024/208248 is a Class 1 Development appeal pursuant to s 8.7 of the EPA Act from a refusal by the council of No DA2023/1346 for the use of certain alterations and additions to the existing dwelling house on the Site.

5. The Court arranged a conciliation conference under s 34(1) and s 34AA of the LEC Act between the parties, which was held on site and thereafter at council chambers.

6. Following the conciliation conference, the parties reached agreement in both matters as to the terms of decisions in the proceedings that would be acceptable to the parties, being decisions that the Court could have made in the proper exercise of its functions.

7. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decisions which involves the Court exercising the power under s 8.18(4)(b) of the EPA Act to make an order to achieve compliance with the DCO the subject of the appeal and an order under s 8.7 of the EPA Act granting development consent to No DA/2023/1346.

Satisfaction of Jurisdiction

8. There are jurisdictional pre-requisites which require my satisfaction before the power to make the agreed orders can be exercised by the Court. The council outlined jurisdictional matters of relevance in the proceedings No 2024/208248 (development appeal) in an agreed Jurisdictional Statement (the Statement) which I refer to below.

9. Dealing firstly with the DCO appeal, the background facts are set out in the ‘Statement of Facts and Contentions’, Northern Beaches Council, dated 17 July 2024 and filed in Court and I do not need to set them out in detail. The validity of the DCO was not challenged in Court and I note the procedural fairness provisions of the EPA Act were carried out. I am satisfied that there is no jurisdictional issue as regards the validity of the issue of the DCO.

10. The parties agreed with the terms and conditions of the revised DCO to be issued by the Court. The modified DCO is attached at Annexure A to this judgment and requires the applicant to carry out the No 10 and No 12 Development Control Orders so listed (the Orders). These Orders are made under s 9.34(1)(a) of the EPA Act, being general orders Nos 10 and 12 in the Table to Pt 1 of Sch 5 to the EPA Act.

11. The substance of the Orders is to remove the structures from the road reserve in front of the Site as shown in the Plan attached to Annexure A and to restore that area to its previous condition.

12. The reasons for issuing the Orders and the agreed time period for compliance with the Orders are set out at p 2 of Annexure A.

13. I am satisfied that it is within the Courts power to make the parties proposed Order in proceedings No 2024/208191 and no jurisdictional impediment arises.

14. As regards the development appeal in proceedings No 206248, I accept the analysis of the relevant planning controls and conclusions reached by the parties in the Statement. The Site is zoned C4 Environmental Living under the Pittwater Local Environmental Plan 2014 and the existing dwelling is permissible. The development application the subject of the appeal only seeks approval of the use of parts of the dwelling already constructed. The Court and the parties conducted a full inspection of the areas where the alterations and additions had been carried out and I accept that the agreement reached by the parties to allow the appeal and grant consent to No DA/2023/1346 subject to the conditions in Annexure A1 is appropriate.

Conclusion

15. As the parties’ decisions are decisions 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’ decisions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

16. Taking into account the Statement which I accept, the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the Court making the proposed orders as set out in this judgment and Annexures A and A1.

Orders

17. In proceedings No 2024/208191, the Court orders that:

1. The appeal is upheld;

2. The Development Control Order issued by the Respondent to the Applicant on 22 May 2024 under Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) is, pursuant to s 8.18(4)(b) of the EPA Act, modified in accordance with the Development Control Order at ‘Annexure A';

3. Each party shall pay its own costs of these proceedings.

18. In proceedings No 2024/208248, the Court orders that:

1. The appeal is upheld;

2. Development consent is granted to Development Application No. DA/2024/2023/1346 for the use of the alterations and additions to the existing dwelling at 1180 Barrenjoey Road Palm Beach NSW 2108, subject to the conditions at Annexure ‘A1’.

L Byrne

Acting Commissioner of the Court

Annexure A

Anneuxre A1

**********

Decision last updated: 21 March 2025