Radowski v The Council of the City of Sydney

[2024] NSWLEC 1799

Land and Environment Court

New South Wales

Medium Neutral Citation:

Radowski v The Council of the City of Sydney [2024] NSWLEC 1799

Hearing dates:

Conciliation Conference held on 29 November 2024

Date of orders:

12 December 2024

Decision date:

12 December 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order No 3 issued to the Applicant on 8 August 2024 by the Council of the City of Sydney in relation to Lot 11 in DP 828278, known as 113-115 Reservoir Street, Surry Hills, as shown in the modified Order in Annexure ‘A’.

Catchwords:

APPEAL – development control order – modified order – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Mark Radowski (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
M Sonter (Solicitor)(Applicant)
A Stipcevic (Solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s):

2024/327645

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) being an appeal against Development Control Order No 3 being a demolish works order issued on 8 August 2024 in relation to Lot 11 in DP 828278 commonly known as 113-115 Reservoir Street, Surry Hills (the Site).

2. The Demolish Works Order required the Applicant to comply with the following orders:

“To demolish a building (being the following recently constructed works located at Lot 11 DP 828278, 113-115 Reservoir Street, SURRY HILLS NSW 2010) in accordance with AS2601-2001 The Demolition of Structures:

The recently constructed steel pergola structure (facing north) parallel to Reservoir Street on the lower rooftop section (Pergola 1);

The recently constructed steel pergola structure (facing west) adjoining the east side on the lower rooftop section (Pergola 2);

The recently constructed timber deck installed on the lower rooftop area; and

The recently constructed balustrades on the lower rooftop area adjoining Reservoir Street.”

3. On 14 August 2024, the Applicant lodged Building Information Certificate BIC-32669 (BC/2024/103) in relation to the works the subject of the Demolish Works Order, being the two existing timber pergolas, timber deck, planter boxes and replacement and installation of balustrades on the lower rooftop area at the Site.

4. On 3 September 2024, the Applicant lodged Development Application D/2024/729 seeking consent for alterations to existing structures at the rooftop level of the building and ongoing use of the rooftop terrace and associated structures at the Site.

5. On 21 October 2024, the Respondent granted consent to Development Application D/2024/729. Following the granting of development consent, the parties reached an in-principle agreement to modify the terms of the Demolish Works Order to bring about a resolution of the issues in dispute between the parties.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 29 November 2024. I presided over the conciliation conference.

7. 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. This decision involved the Court upholding the appeal and modifying the terms of the Demolish Works Order to reflect the works approved by Development Consent D/2024/729

8. 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. 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.

9. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to modify a development control order.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 8.18 of the EPA Act. The parties explained how the jurisdictional prerequisites have been satisfied.

11. The Applicant is required to carry out demolition works in accordance with the terms of the Modified Order which incorporates the Demolition & Proposed Site Plan DWG 24319-010 prepared by ES Design dated 10 October 2024 approved by Development Consent D/2024/729.

12. In light of Development Consent D/2024/729, the Modified Order addresses the remaining issues between the parties regarding the unauthorised works. The use of some of the unauthorised works has been approved by the Development Consent D/2024/729. The works not approved for use by Development Consent D/2024/729 are required by the Modified Order to be demolished.

13. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an 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.

14. The parties seek to have the Court modify the Demolish Works Order pursuant to s 8.18(4)(b) to give effect to the Modified Order as set out at Annexure A.

15. I am 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. I adopt the reasons given by the parties as set out in this judgment.

16. 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.

Orders:

17. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order No 3 issued to the Applicant on 8 August 2024 by the Council of the City of Sydney in relation to Lot 11 in DP 828278, known as 113-115 Reservoir Street, Surry Hills, as shown in the modified Order in Annexure ‘A’.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 12 December 2024