Proprietors of SP 16183 v North Sydney Council

[2020] NSWLEC 1645

Land and Environment Court

New South Wales

Medium Neutral Citation:

Proprietors of SP 16183 v North Sydney Council [2020] NSWLEC 1645

Hearing dates:

Conciliation conference on 2, 19 October and 3 December 2020, final agreement filed 17 November 2020

Date of orders:

15 December 2020

Decision date:

15 December 2020

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Term 1 of the Development Control Order - General Order issued to the Applicant by the Respondent on 16 June 2020 in relation to the premises at 85 Kurraba Road, Kurraba Point NSW 2089 is modified as follows:

Term 1 of the Order must be complied with by 31 March 2021.

(3) Each party is to pay its own costs.

Catchwords:

DEVELOPMENT CONTROL ORDER – GENERAL ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Proprietors of SP 16183 (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
D Baird (Solicitor) (Applicant)

Solicitors:
Colin Biggers and Paisley Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/206622

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of section 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a Development Control Order – General Order (the Order) issued to the applicant by the respondent in relation to property at 85 Kurraba Road, Kurraba Point NSW 2089 (the site).

2. 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 2, 19 October and 3 December 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. 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. The agreement involves the Court upholding the appeal and modifying the term of the Order.

5. 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. The parties' decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify the Order.

6. At issue is a multi level viewing platform constructed in the rear yard of the site.

7. Pursuant to s 9.34 of the EPA Act, the respondent issued the Order to the applicant on 16 June 2020.

8. Term 1 of the Order required demolition and removal of the viewing platform within thirty days of the date of the Order.

9. The applicant commenced these proceedings on 14 July 2020.

10. At the conciliation conference the parties agreed the applicant should undertake alterations to the viewing platform to reduce its height, install privacy screening to protect neighbouring properties, certify its structural adequacy and render it safe and fit for purpose. The parties also agreed to its temporary status.

11. Upon resumption of the conciliation conference, the parties agreed to modify the term of the Order to effect demolition and removal of the now-altered viewing platform by 31 March 2021.

12. Having considered any jurisdictional requirements and forming the necessary view required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

13. The Court orders that:

1. The appeal is upheld.

2. Term 1 of the Development Control Order - General Order issued to the Applicant by the Respondent on 16 June 2020 in relation to the premises at 85 Kurraba Road, Kurraba Point NSW 2089 is modified as follows:

Term 1 of the Order must be complied with by 31 March 2021.

3. Each party is to pay its own costs.

………………………..

M Pullinger

Acting Commissioner of the Court

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Decision last updated: 15 December 2020