Nesseim v Ku-ring-gai Council

[2024] NSWLEC 1440

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nesseim v Ku-ring-gai Council [2024] NSWLEC 1440

Hearing dates:

Conciliation conference 18 July 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Respondent’s Development Control Order dated 27 April 2023 is substituted in accordance with s.8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked “A”.

Catchwords:

APPEAL – development control order – demolish works order – conciliation conference – agreement reached to substitute order

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.2, 8.18, 9.34, Pt 1 Sch 5

Land and Environment Court Act 1979, s 34

Ku-ring-gai Local Environmental Plan 2015, cl 6.5

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 2.30, 2.74B

Category:

Principal judgment

Parties:

Ezzat Daniel Nesseim (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/165869

Publication restriction:

No

Judgment

1. COMMISSIONER: At 16 Bromley Avenue, Pymble, the applicant carried out work following the issue of a complying development certificate on 18 March 2020 for the construction of a dwelling house (the CDC). This work included the construction of a retaining wall, associated paved area and stairs between the western elevation of the dwelling and the fence (the Structures). On 27 April 2023, Ku-ring-gai Council (the Council) issued a modified development control order in the form of a Demolish Works order (the order) requiring the demolition of the Structures. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. Item 3 of Pt 1 of Sch 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building is “erected in contravention of this Act”. The applicants appeal against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which substitute the order with a new development control order in the form of a Compliance Order, are made as a result of an agreement between the parties that was reached at a conciliation conference.

The conciliation conference

2. Following an adjournment of the hearing of the appeal, 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 18 July 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was provided on the same date. The agreement is for the order to be substituted with a Compliance Order, which requires the carrying out of works so as to ensure that the Structures comply with relevant development standards.

The power to make orders in accordance with the agreement

4. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

5. The substituted order is a Compliance Order, under Item 11 of Sch 5 Pt 1 of the EPA Act. A Compliance Order can be issued as follows:

To do what?	When?	To whom?
Compliance Order
To comply with a planning approval for the carrying out of works	A planning approval has not been complied with.	• The owner of the premises • Any person entitled to act on a planning approval, or acting in contravention of a planning approval
To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards	Building has been unlawfully erected and does not comply with relevant development standards.	The owner of the premises

6. A reference to a “planning approval” is a reference to a development consent (s 9.34(3) of the EPA Act), and the definition of a development consent includes a complying development certificate.

7. Whilst the parties agree that the retaining wall and paved area are generally in accordance with the CDC, the stairs have been constructed to the boundary, whereas the CDC plans show them as being setback from the boundary by 950mm.

8. The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP ECDC) allows certain development to be carried out without obtaining development consent, including the construction of stairs and earthworks. It sets particular development standards with which certain development is required to comply in order to be exempt from obtaining development consent. The stairs do not comply with the relevant standards for stairways in cl 2.74B of the SEPP ECDC, which require the stairs to be less than 1m above the ground level (existing) and at least 450mm from the lot boundary. The earthworks required for the stairs also do not meet the relevant standards for earthworks in cl 2.30 of the SEPP ECDC, which require the fill material to be setback from the side boundary by 900mm and to be no greater than 600mm above the ground level (existing). The stairs and associated fill therefore cannot be considered exempt development under the SEPP ECDC, and instead require development consent.

9. Accordingly, the stairs, which are attached to both the retaining wall and the paved area, were not built in accordance with the CDC and were not authorised as exempt development pursuant to the SEPP ECDC. The stairs are therefore a building that has been “unlawfully erected” as they were erected contrary the EPA Act, which requires at s 4.2(1) that development requiring development consent must not be carried out unless consent has been obtained (which includes a complying development certificate), and the development is carried out in accordance with the consent.

10. The stairs also “do not comply with relevant development standards” due to their non-compliance with the development standards in the SEPP ECDC referred to above. In addition, the Structures, which are attached to the stairs and include a wall between the paved area and the tennis court, have prevented stormwater run off from the tennis court from being contained within the site, contrary to cl 6.5(2)(c) of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), and causes it to flow to the adjoining neighbour’s property. The parties agree, and I accept, that the matters in cl 6.5 of the KLEP concern the carrying out of development and fall within the definition of ‘development standards’ in s 1.4 of the EPA Act.

11. As set out above, a Compliance Order can be issued in circumstances where the “Building has been unlawfully erected and does not comply with relevant development standards”. These circumstances are met, and there is power for a Compliance Order to be issued pursuant to s 9.34 of the EPA Act.

12. In addition, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are 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.

13. I am satisfied that the power under ss 8.18(4)(b) and (4)(f) is sufficiently broad to enable the Court to make orders to substitute the development control order with a Compliance Order in the terms agreed to by the parties.

14. The terms of the Compliance Order require the carrying out of works to provide a separation of the stairs from the boundary, and to carry out works to prevent the flow of stormwater to the adjoining property. The former works will result in a 700mm setback of the stairs from the boundary (using planter boxes), which brings the stairs into compliance with the development standard in cl 2.74B(c) for the stairway located at least 450mm from the boundary. The latter works will prevent stormwater flowing onto the adjoining property, which will ensure that the Structures associated with the stairs will comply with cl 6.5(2)(c) of the KLEP and cl 2.30(e) of the SEPP ECDC. Accordingly, all works fall within the terms of a Compliance Order within Item 11, to require an owner to “do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards”.

15. I am therefore satisfied that the decision to make orders to substitute the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that there is a statutory basis under s 9.34 of the EPA Act and Item 11 of Sch 5 Pt 1 to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to “substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given” or make such other order “with respect to the development control order as the Court thinks fit”.

The final orders

16. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires 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)).

17. In making order 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 the issues that were originally in dispute between the parties.

18. The Court orders that:

1. The appeal is upheld.

2. The Respondent’s Development Control Order dated 27 April 2023 is substituted in accordance with s.8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked “A”.

J Gray

Commissioner of the Court 

Annexure A

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Decision last updated: 26 July 2024