Panoyan v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Panoyan v Ku-ring-gai Council [2025] NSWLEC 1093

Hearing dates:

Conciliation Conference on 20 and 21 November 2024

Date of orders:

20 February 2025

Decision date:

20 February 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

 (1) The appeal is upheld.

(2) Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, Development Control Order No EPA0130/23 dated 16 October 2023 issued by the Respondent to the Applicants is substituted with the Order annexed to these orders and marked Annexure A.

Catchwords:

APPEAL – unlawful works – breach of development consent – secondary dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Div 9.3; Sch 5, Pt 1

Land and Environment Court Act 1979, ss 17, 34

Ku-ring-gai Local Environmental Plan 2015

Cases Cited:

Cai v Fairfield City Council [2022] NSWLEC 58

Category:

Principal judgment

Parties:

Antranik Panoyan (First Applicant)
Anne Panoyan (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicants)
D Robertson (Respondent)

Solicitors:
Storey and Gough (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2023/347008

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 17(d) of the Land and Environment Act 1979 (LEC Act) from a Development Control Order No EPA0130/23 (the DCO) issued by Ku-ring-gai Council (the Council) to the Applicants over their land at 12 Barana Parade, Roseville Chase, NSW 2069 being Lot 10 DP 14083 (the Site). The Site has a second street frontage to Griffith Avenue.

2. The DCO required the demolition of a building that was approved as a secondary dwelling at the rear of the Site but did not meet the requirements to satisfy the definition and planning controls for a secondary dwelling and was in breach of a development consent.

3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on site and at Court.

4. Following the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, being a decision that the Court could have made in the proper exercise of its functions.

5. The parties agreed decision involves the issue of Development Control Orders No 3 and No 11 pursuant to ss 9.34(1)(a), 8.18(4)(c), 8.18(4)(f) and Div 9.3, Sch 5 (Orders No 3 and 11) of the EPA Act. The orders require the Applicants to demolish and remove unauthorised works carried out on the land in respect of the construction of the secondary dwelling which fronts Griffith Street. The works ordered to be carried out are particularised in Annexure A to this judgment.

Site and Zoning

6. Currently erected on the Site are two residential dwellings, the primary house fronting Barana Parade and another dwelling largely completed fronting Griffith…