Power v Northern Beaches Council

[2019] NSWLEC 1142

Land and Environment Court

New South Wales

Medium Neutral Citation:	Power v Northern Beaches Council [2019] NSWLEC 1142
Hearing dates:	Conciliation conference on 26 March 2019
Date of orders:	29 March 2019
Decision date:	29 March 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [12] below
Catchwords:	ORDERS: conciliation conference; agreement between the parties; orders modified.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Geoffrey Power (First Applicant) Jennifer Sue Power (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: J Farrell (Respondent)   Solicitors: G Christmas, Apex Planning and Environment Law (Applicants) Northern Beaches Council (Respondent)
File Number(s):	2018/266754
Publication restriction:	No

Judgment

1. COMMISSIONER: Geoffrey Power and Jennifer Power (the Applicants) have appealed against an Order issued by Northern Beaches Council under s 9.34(1)(a), and in the terms of Part 1 of Schedule 5, of the Environmental Planning and Assessment Act 1979 (the EP&A Act) on 7 August 2918 (Ref No. EPA2018/0034), concerning 16 Kokoda Crescent, Beacon Hill (the Subject Site), and which required that the Applicants:

1. cease all music classes being conducted on the Subject Site until such time as planning approval had been obtained;

2. demolish brickwork associated with the closing off of the vehicle access opening to the garage on the Subject Site;

3. reinstate the garage entry and lower ground floor layout as per the last known consent for the Subject Site (BA5003/4934).

2. The appeal comes to the Court pursuant to s 8.18 of the EPA Act, and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court arranged for the matter to be addressed under the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act), and a conciliation conference was arranged between the Parties and their representatives on 26 March 2019. I presided over that conciliation conference.

5. 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.

6. This decision involved the Court upholding the appeal, and modifying the Order to reflect the agreement of the Parties.

7. 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.

8. The Parties’ decision involves the Court exercising the function under s 8.18 of the EP&A Act to modify the Order, and I am satisfied that the provisions of s 8.18 of the EP&A Act have been fulfilled.

9. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. I am further 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.

11. 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.

12. The Court orders:

1. The appeal is upheld.

2. The Order dated 7 August 2018 is modified, subject to the terms set out in Annexure “A”.

……………………………….

Michael Chilcott

Commissioner of the Court

Annexure A 

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Decision last updated: 04 April 2019