Moaref v Willoughby City Council

[2020] NSWLEC 1660

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moaref v Willoughby City Council [2020] NSWLEC 1660

Hearing dates:

Conciliation conference on 13 November 2020 and 3 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [10]

Catchwords:

APPEAL – development control order – 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:

Omid Moaref (Applicant)
Willoughby City Council (Respondent)

Representation:

Solicitors:
J Schmidt-Liermann (Solicitor) (Applicant)
K Gerathy (Solicitor) (Respondent)

Counsel:
Schmidt-Liermann Pty Ltd (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/247753

Publication restriction:

No

Judgment

1. COMMISSIONER: Mr Omid Moaref (the Applicant) appeals the development control order No. 3284 imposed by Willoughby City Council (the Respondent) on 23 July 2020 in accordance with s 9.34 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), requiring the removal of unauthorised works associated with a swimming pool and surround at 24 Raeburn Avenue, Castlecrag (subject property).

2. The appeal is lodged in accordance with s 8.18(1) of EPA Act, which allows an appeal to the Court by an applicant seeking the revocation of a development control order. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached following a conciliation conference.

3. 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 13 November 2020. I presided over the conciliation conference.

4. At the conciliation conference, an in-principle agreement was reached between the parties under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that was acceptable to the parties.

5. As the decision agreed upon by the parties required the preparation of drawings to confirm the scope of works to be undertaken by the Applicant, I adjourned the conciliation conference to permit the same. The conciliation conference was reconvened on 3 December 2020 and a signed agreement in accordance with s 34(10) of the LEC Act and was filed with the Court on 7 December 2020.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

7. I form this state of satisfaction as these decisions fall within the power granted to the Court by s 8.18(4)(b) of the EPA Act to modify the development control order.

8. Having reached the state of satisfaction that the decision agreed upon is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of amending the development control order.

10. The Court orders that:

1. The appeal is upheld in part.

2. The terms of Development Control Order No. 3284 issued 23 July 2020 issued pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 dated 23 July 2020 are amended as follows:

Within six (6) months of the date of these orders.

Order 1. Demolish and remove the following unauthorised works:

a. the timber deck structure and associated brick piers to the North of the existing swimming pool coping within 680mm of the Northern boundary, adjacent to the swimming pool, in the rear of the premises whilst retaining the existing decking of 350mmm on the Northern side of the existing pool fence.

Notes:

i. Demolition of the unauthorised works shall be carried out in accordance with Australian Standard AS 2601 - 2001: "The demolition of structures" and all resultant building debris/material from the demolition works shall be disposed of at an approved waste disposal facility.

ii. Demolition works shall be carried out by a competent person.

Order 2

a. construct new brick piers and footings in accordance with the plans annexed and marked A being drawing numbers Construction Certificate Plans S9, S10 and S11 prepared by Capital Engineering Consultants Project STR17408 Rev D dated 20 November 2020 as amended in red.

b. backfill soil to a depth of 400mm above natural ground level in the planter area depicted on the plans in Annexure A, with suitable drainage to ensure there is no impact upon the adjoining property to the North, and installing sleepers as required to a height of no more than 400mm from natural ground level to retain the extra soil that has been backfilled.

c. plant and maintain Syzygium Resilience as screen planting in the planter area depicted on Annexure A with Syzygium Resilience. Plants are to be planted at 1 metre spacing from a minimum pot size of 400mm at installation and maintained to achieve a minimum maturity height of 3m.

……………………

T Horton

Commissioner of the Court

Annexure A (164648, pdf)

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Decision last updated: 18 December 2020