Meriton Properties Pty Ltd v Waverley Council

[2025] NSWLEC 1060

Land and Environment Court

New South Wales

Medium Neutral Citation:

Meriton Properties Pty Ltd v Waverley Council [2025] NSWLEC 1060

Hearing dates:

Conciliation Conference held 24 January 2025

Date of orders:

07 February 2025

Decision date:

07 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

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 modifies Developmental Control Order NO-5862 issued by the Respondent to the Applicant on 29 October 2024 in accordance with Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – fire safety – modified order – time to comply - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.35, Pts 6, Sch 5 Pts 2, 7

Land and Environment Court Act 1979, s 34

Building Products (Safety) Act 2017, s 9

Category:

Principal judgment

Parties:

Meriton Properties Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Aiden (Solicitor)(Applicant)
J Ede (Solicitor)(Respondent)

Solicitors:
Meriton Group (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/439682

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the Development Control Order (DCO) NO-5862 dated 29 October 2024 pursuant to s 9.35 of the EPA Act for fire safety and combustible cladding rectification (DCO) at Meriton Serviced Apartments, 95 Grafton Street, Bondi Junction legally described as Lot 201 in DP 1017003. (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 has been held on 24 January 2025. I 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 Court upholding the appeal and modifying the DCO.

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. 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.

5. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to modify the DCO.

6. 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 of the EPA Act to modify a development control order. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the court.

7. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, 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.

8. As such, the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

9. The parties provided the following relevant background:

1. The Site is occupied by a mixed-use development accommodated within two towers, being serviced apartments known as Meriton Serviced Apartments. These two towers are above a podium base comprising of retail premises and car parking, and a four-storey building comprising serviced apartments above the retail plaza known as Tiffany Plaza. The Site currently contains a total of 305 serviced apartments and two levels of car parking within the podium comprising 205 spaces.

2. On 10 August 2018, a former Commissioner for Fair Trading, the Department of Customer Service, issued a notice pursuant to s 9(1) of the Building Products (Safety) Act 2017 (BP Act) to prohibit the use of aluminium composite panels (ACP) with a core comprised of greater than 30 percent polyethylene by mass in any external cladding, external wall, external insulation, façade or rendered finish in specified buildings (Building Product Use Ban). The Building Product Use Ban commenced on 15 August 2018.

3. On 16 September 2024, the Respondent issued a notice of intention to give an order to the Applicant, as required by Part 6 of the EPA Act, in response to consideration of an External Façade Assessment Report prepared by AED Pty Ltd dated 17 August 2020.

4. On 11 October 2024, the Respondent received and considered representations from the Applicant, as required by Part 7 of Sch 5 of the EPA Act, which included provision of a Fire Engineering Report prepared by AED Pty Ltd dated 8 August 2024.

5. On 29 October 2024, the Respondent proceeded to issue the DCO to the Applicant with modification made in response to consideration of the Applicant’s representations in accordance with cl 15(1)(b) of Sch 5 of the EPA Act.

10. On 26 November 2024, the Applicant filed the Class 1 Application to appeal the DCO, being within the time period specified in s 8.18(3) of the EPA Act.

11. On 22 January 2025, the parties filed an agreement with the Court. The agreement reached is for the Order to be modified to clarify the period for compliance with the Order as follows (changes shown in strikethrough and underline):

Period for compliance:

All required works are to be completed within the timeframe as proposed within the external façade assessment report dated 17 August 2020 prepared by A Whitehouse of AED Pty Ltd from the date of this Order:

Six (6) months to provide details on the proposed cladding replacement product for Council concurrence; and

Eighteen (18) Twenty-four (24) months, from the date of the Council’s concurrence, to complete works.

12. The parties agree that the Order should be modified in the manner proposed on the basis that the Modified Order is validly issued pursuant to Item 1 of Pt 2 of Sch 5 of the EPA Act, being a “Fire Safety Order”.

13. For the purposes of Item 1 of Pt 2 of Sch 5 of the EPA Act:

1. the Modified Order requires the Applicant to do specified things for the purposes of ensuring or promoting adequate fire safety and are therefore in accordance with Column 1 of Item 1 of Pt 2 in Sch 5 of the EPA Act;

2. the Modified Order is for the purposes of ensuring and promoting adequate fire safety to prevent fire, suppress fire or prevent the spread of fire and also to ensure or promote the safety of persons in the event of fire for the purposes of Column 2 of Item 1 of Pt 2 in Sch 5 of the EPA Act; and

3. the Applicant is the owner of the Site the subject of the Modified Order such that the Applicant is able to be issued with the Modified Order pursuant to Column 3 of Pt 2 of Sch 5 of the EPA Act.

14. 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. I adopt the reasons given by the parties.

15. 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.

Orders:

16. 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 modifies Developmental Control Order NO-5862 issued by the Respondent to the Applicant on 29 October 2024 in accordance with Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A

Decision last updated: 07 February 2025