Michael Maleki v Ku-ring-gai Council

[2016] NSWLEC 1648

Land and Environment Court

New South Wales

Medium Neutral Citation:	Michael Maleki v Ku-ring-gai Council [2016] NSWLEC 1648
Hearing dates:	Conciliation conference on 12 August, 28 September, 2 & 22 November and 7 December 2016
Date of orders:	15 December 2016
Decision date:	15 December 2016
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: Appeal against an order under section 121B of the Act to demolish the treated timber retaining walls and remove the filled ground placed over the rear yard of the subject allotment and restore the pre-existing ground level. conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Michael Maleki (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Mr M Mantei, Planning Lawyers (Applicant) Mr J Hones, Hones Lawyers Pty Ltd (Respondent)
File Number(s):	2016/155480
Publication restriction:	No

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

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

4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The terms of the agreed decision are that the Order dated 2 February 2016, ("the respondent's order"), is modified as followed:

1. Delete paragraph A on page 1 and insert instead the following:

A. You must carry out the following works, including landscaping as shown on the landscape concept plan prepared by Anthea Dunlop Landscape Design dated 18/10/2016 revision B.

These works include:

1. reducing existing ground levels so as to achieve the approved ground levels

2. removing any treated timber redundant retaining wall and step that is not shown on the approved plan; and

3. plant 4 Acmena smithii var “Cherry Surprise” at the south-eastern corner along the common boundary to 5 Warrandoo Street, Gordon and replace the Eucalyptus Haemastoma shown on the approved plan located in the southern-corner with 2 Acmena smithii var ‘Cherry Surprise

(b) Delete paragraph B and insert instead the following:

B. You must:

1. have the easement route through 5 Warandoo Street surveyed and set out on site by a registered surveyor for the distance necessary to carry out the detailed design described below.

2. provide Council before the 16 February 2017 with a detailed, construction stage design of a stormwater drainage system prepared by a suitably qualified and experienced engineer and based on the stormwater drainage system shown on the plan prepared by ACOR consulting (CC) Pty Ltd titled "Proposed Stormwater Plan – Easement Option" dated 11/11/16, project GO160804, issue B dated 22/11/2016; and

3. upon receiving Council’s approval, install the drainage system as shown on the detailed design as approved by Council; and

4. On completion of the stormwater drainage works described above, submit to Council a compliance certificate from a suitably qualified and experienced engineer certifying that the stormwater drainage system has been installed in accordance with the approved design.

Note:   

1.   To excavate the land the inter-allotment drainage easement occupies on Lot 1 DP 790686 No. 5 Warandoo Street, Gordon you should advise the owners prior to commencing excavation and the excavation must be setout by a registered surveyor.

2.   Sedimentation controls must be installed and maintained to prevent soil erosion, water pollution or the discharge of loose sediment on the surrounding land by:

(a)    diverting uncontaminated run-off around cleared or disturbed areas, and

(b)    erecting a silt fence and providing any other necessary sediment control measures that will prevent debris escaping into drainage systems, waterways or adjoining properties, and

(c)    preventing the tracking of sediment by vehicles onto roads, and

(d)    stockpiling top soil, excavated materials, construction and landscaping supplies and debris within the lot.

3.   On completion of the stormwater drainage works and should you require a Section 149A Building Certificate, it will be necessary for the compliance certificate to be issued by a stormwater compliance engineer accredited C15 by the New South Wales Building Professionals Board to be submitted to council to certify the installed stormwater drainage system.”

(c) Delete all of the words under the heading “Period for compliance with Order” on page 3 of the Respondent’s order and insert instead the following words:

“The Order must be completed within 120 days from the day of Council notifying you in writing that the detailed design is approved.”

2. The Respondent’s order is otherwise confirmed.

3. No order as to costs.

…………………………..

Acting Commissioner Hussey

155480.16 Hussey - Annexure A (469 KB, pdf)

155480.16 Hussey - Annexure B (1.09 MB, pdf)

Decision last updated: 05 January 2017