Queenprop Pty Ltd v Mosman Municipal Council

[2024] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation:

Queenprop Pty Ltd v Mosman Municipal Council [2024] NSWLEC 1193

Hearing dates:

Conciliation Conference 18 March and 4 April 2024

Date of orders:

17 April 2024

Decision date:

17 April 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order given by Mosman Municipal Council on 13 October 2023 is modified pursuant to section 8.18(4) of the Environmental Planning and Assessment Act 1979 in accordance with the modified order contained at Annexure A.

Catchwords:

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

Legislation Cited:

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

Land and Environment Court Act 1979, ss 17, 34

Mosman Local Environmental Plan 2012

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:

Cai v Fairfield City Council [2022] NSWLEC 58

Category:

Principal judgment

Parties:

Queenprop Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
F Berglund (Applicants)
B Dyer (Solicitor) (Respondent)

Solicitors:
Vincent Young Lawyers (Applicants)
Maddocks (Respondent)

File Number(s):

2023/358022

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (No. 13.2023.7.1 dated 13 October 2023) issued by the respondent under s 9.34(1) and Pt 1 of Sch 5 of the EPA Act (DCO) to the applicant, requiring the applicant to demolish specified unlawful works constructed at land identified as Lot 6 in Strata Plan 2554, known as Unit 6, 17 Mosman Street, Mosman (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Subject Land is zoned R3 – Medium Density Residential under the Mosman Local Environmental Plan 2012 (MLEP).

4. The Subject Land is owned by the applicant.

5. The parties agree that the following works were carried out on the Subject Land at some time between 2015 and March 2021:

1. Lower Level:

1. Removal of internal walls;

2. Construction of new internal walls were built to create an unauthorised third bedroom with a walk-in wardrobe;

3. Removal of the existing kitchen;

4. Construction of a new ensuite in the former kitchen area comprising a shower, incinerator toilet and vanity adjoining the unauthorized third bedroom;

5. Removal of bi-fold doors and replacement with stacking doors within the unauthorised third bedroom;

6. Construction of a laundry cupboard within the existing bathroom; and

7. Installation of ducted air-conditioning system which passes through walls, floors and ceilings.

2. Upper Level:

1. Installation of a new kitchen;

2. Removal of existing glass stacking doors and installation of new glass stacking doors;

3. Construction of a steel framed awning with glass roof measuring approximately 1.8 metres and 3.5 metres on the roof terrace area adjoining the roofing of the upper level of the premises;

4. Construction of an outdoor kitchen including bench, cabinetry, barbeque, fridge and sink below the glass awning; and

5. Installation of air-conditioning system with new units located on the upper level terrace and the roof of the upper level,

(collectively, the Works).

6. On 15 March 2021, the applicant lodged building information certificate application (No 4.2021.32.1) which sought to regularise the Works carried out at the Subject Land.

7. Upon becoming aware of the Works, it was the respondent’s contention that the Works required development consent and were not exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).

8. Following various correspondence between the parties and a site inspection, the respondent gave the applicant a Notice of Intention to Give an Order on 14 September 2023 to which the applicant did not respond.

9. The respondent issued the DCO to the applicant on 13 October 2023 pursuant to s 9.34(1) and Pt 1 of Sch 5 of the EPA Act.

10. The applicant commenced Class 1 proceedings on 10 November 2023, being within the time period specified in s 8.18(3) of the EPA Act.

11. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 18 March 2024. I presided over the conciliation conference.

12. During the conciliation conference, the parties reached agreement as to the appropriate resolution of this matter. The parties provided a signed s 34 agreement and accompanying jurisdictional statement on 8 April 2024.

13. The agreement reached is for the DCO to be modified to provide an extended timeframe for compliance, thereby giving the applicant an opportunity to regularise the Works. The modified order provides that those aspects of the Works that cannot be so regularised, will otherwise need to be demolished.

Jurisdictional considerations

14. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders modifying the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

15. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, 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.

16. It is clear that the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

17. The parties agree that:

1. the works to convert the Subject Land from a two-bedroom dwelling to a three-bedroom dwelling represents an intensification of the residential use that would have required planning approval; and

2. in addition, some of the other works (for example, the incinerator toilet) represented a health hazard to the public.

18. I am satisfied the DCO should be modified in the manner proposed by the parties on the basis that:

1. The Works required development consent and were not otherwise exempt under the Codes SEPP.

2. Unless and until those works are regularised through either a Building Information Certificate and/or development consent, it is appropriate that the Works, or those aspects of the Works that cannot be regularised, should be demolished.

3. The DCO now proposed to be modified by the Court is therefore in accordance with s 9.34(1) and Pt 1 of Sch 5 of the EPA Act and consistent with the form of order supported by Preston CJ in Cai v Fairfield City Council [2022] NSWLEC 58.

19. 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.

20. The Court notes that the applicant has provided a written undertaking that the Subject Land will not be occupied unless and until the terms of the modified DCO the subject of this judgment have been complied with.

21. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order given by Mosman Municipal Council on 13 October 2023 is modified pursuant to section 8.18(4) of the Environmental Planning and Assessment Act 1979 in accordance with the modified order contained at Annexure A.

……………………….

N Targett

Acting Commissioner of the Court

Annexure A 

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Decision last updated: 17 April 2024