McKavanagh v Goulburn Mulwaree Council

[2019] NSWLEC 1431

Land and Environment Court

New South Wales

Medium Neutral Citation:	McKavanagh v Goulburn Mulwaree Council [2019] NSWLEC 1431
Hearing dates:	Conciliation conference on 3 September 2019; 18 September 2019; 3 October 2019
Date of orders:	09 October 2019
Decision date:	09 October 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court Orders: (1) The Appeal is upheld. (2) The Respondent's Emergency Order dated 20 December 2018 is modified in accordance with s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A". (3) Each party to pay their own costs of the proceedings.
Catchwords:	ORDER – appeal – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Shaun Gallagher McKavanagh (Applicant) Goulburn Mulwaree Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) M Pearce (Respondent) Solicitors: GHS Legal (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2019/17665
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal, brought by the Applicant under s 8.18 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), against Goulburn Mulwaree Council's development control order issued on 20 December 2018 under s 9.34(1)(a) of the EPA Act and Order No. 5 of Schedule 5 to the EPA Act. The order concerns a retaining wall at 88 Cathcart Street, Goulburn (Lot 11 DP 561559), and requires the Applicant to undertake actions associated with the rectification of the retaining wall, and also in regard restricting access to the retaining wall prior to its rectification.

2. Section 8.18 sets out the powers of the Court on an appeal against an order. Section 8.18(4) provides as follows:

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.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 3 and 18 September, and 3 October 2019, and at which I presided. At the conclusion of the conciliation conference, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and making a modified order under s 8.18(4)(b) of the EPA Act which: (1) revised access restriction arrangements, (2) revised the timing and particulars of processes involved in preparations towards retaining wall rectification and (3) revised the timing and reporting arrangements for the actual retaining wall rectification. The parties advised that this was a decision that the Court could make in the proper exercise of its function.

5. Having attended the site and reviewed the relevant provisions cited above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. As the parties’ decision is a decision that the Court could have so made, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position.

6. The Court orders:

1. The Appeal is upheld.

2. The Respondent's Emergency Order dated 20 December 2018 is modified in accordance with s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A".

3. Each party to pay their own costs of the proceedings.

……………………….

P Walsh

Commissioner of the Court

Annexure A (10.2 KB, pdf)

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Decision last updated: 09 October 2019