RYNP Education Consultancy Pty Ltd v Ku-Ring-Gai Council

[2024] NSWLEC 1737

Land and Environment Court

New South Wales

Medium Neutral Citation:

RYNP Education Consultancy Pty Ltd v Ku-Ring-Gai Council [2024] NSWLEC 1737

Hearing dates:

Conciliation Conference 31 July, 26 August, 20 September 2024

Date of orders:

19 November 2024

Decision date:

19 November 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The Appeal is upheld;

(2) Development Control Order EPA0038/24 dated 7 May 2024 and issued by the Respondent to the Applicant pursuant to Division 9.3 and Part 1, Schedule 5 of the Environmental Planning and Assessment Act 1979 (EPA Act), in relation to the property at 8 Norwood Avenue, Lindfield NSW 2070, is modified in accordance with s 8.18(4)(c) of the EPA Act in in the terms set out in the Development Control Order at Annexure ‘A’.

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Catchwords:

APPEAL – Development Control Order – unlawful removal of significant trees and vegetation and associated works on the land - conciliation conference – agreement between the parties – modified Restore Works Order made

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 1, 6, Div 9.3 ss 8.18, 9.34, 9.35, Sch 5

Land and Environment Court Act 1979, s 34

Ku-ring-Gai Local Environmental Plan 2015, cl 6.3

Category:

Principal judgment

Parties:

RYNP Education Consultancy Pty Ltd
ABN 656061004 (Applicant)
Ku- Ring-Gai Council (Respondent)

Representation:

Counsel:
P Murray (solicitor) (Applicant)
C Rose (solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/206893

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) from a Development Control Order EPA0038/24 (DCO) issued by Ku- Ring-Gai Council (the Council) to the Applicant over land at 8 Norwood Avenue, Lindfield NSW 2070 being Lot 1 DP 942917 (the land).

2. Mr R Yuan is a director and owner of RYNP Education Consultancy Pty Ltd, the registered proprietor of the land. In that capacity Mr Yuan attended the s 34 conference on site and at the Council chambers.

3. The land is a large residential block zoned R2 Low Density Residential under the Ku-ring-Gai Local Environmental Plan 2015 (KLEP 2015) and is located on the Council’s Greenweb Map under Part 18 of the Ku-Ring-Gai Development Control Plan (KDCP). Seven of the 12 trees removed at the rear of the property were located within an area mapped as “terrestrial biodiversity” under cl 6.3 of the KLEP 2015. This and other facts are set out in the Reasons for the Order stated in Annexure A.

4. The DCO dated 7 May 2024 was issued on 10 May 2024 to the Applicant under Division 9.3 and Schedule 5 of the EPA Act being an Order No 10. The DCO was issued in relation to the unlawful removal of 10 to 13 trees, vegetation and other works on the land by the Applicant’s contractors. The DCO was issued to restore the land to the condition it was in before the unlawful removal of trees, vegetation and other works occurred.

The Conciliation Conference

5. 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 site and thereafter at Council chambers. I presided over the conciliation conference.

6. Following the conciliation conference, subsequent further discussions within the s 34 conciliation mode and provision of documents from the Applicant to the Respondent, the parties reached an agreement filed in the Court 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.

7. The detail of the modified Restore Works Order is set out in Annexure A to this judgment and references a Vegetation Management Plan (VMP) and landscape plan prepared for the Applicant by GIS Environmental Consultants as a result of the conciliation conference. A minimum of 12 trees are ordered to be replanted and the species are listed in paragraph 2 of the modified Restore Works Order.

8. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision which involves the Court exercising the function under s 8.18(4) of the EPA Act to make an order with respect to the DCO the subject of the appeal.

Satisfaction as to Jurisdiction

9. There are jurisdictional pre-requisites which require my satisfaction before the power to make an order under s 8.18(4)(c) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance to this appeal in an agreed Jurisdictional Statement (the Statement) provided on 20 September 2024 with the s 34 Agreement. I have read the Statement and accept and agree with the parties that all jurisdictional prerequisites have been satisfied. The following salient matters from the Statement are reproduced as follows:

1. The Order was issued pursuant to s 9.34 of the EPA Act, and Part 1 of Schedule 5 of the EPA Act.

2. The Council is a relevant enforcement authority within the meaning of s 9.35 of the EPA Act and was entitled to issue the Order.

3. A notice of intention to serve the Order was issued by the Council on 20 March 2024 in compliance with the procedural fairness requirements of Part 6 of Schedule 5 of the EPA Act.

4. The Order is a ‘Restore Works Order’, which may be given to the ‘owner of premises’ where ‘unauthorised works have been carried out’. The unlawful works that occurred were the removal of trees which would have otherwise required development consent to be removed.

5. The Applicant appealed to the Court against the Order pursuant to s 8.18 of the EPA Act. The Court’s power on hearing an appeal is of a broad compass under s 8.18(4) 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.

(Emphasis added by the parties)

6. Accordingly, pursuant to s 8.18(4)(c) the Court has the jurisdiction to modify or substitute the Order the subject of the appeal.

10. I agree and am satisfied that the modified Restore Works Order that is Attachment A to this judgment is within the Court’s power and class 1 jurisdiction to make.

Conclusion

11. Taking into account the Statement which I accept, the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that the DCO was lawfully issued, and there is no jurisdictional impediment to the Court making the orders proposed by the parties in accordance with the s 34 agreement.

12. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I make the following orders pursuant to s 8.18(4)(c) of the EPA Act.

Orders

The Court orders that:

1. Appeal upheld;

2. Development Control Order EPA0038/24 dated 7 May 2024 and issued by the Respondent to the Applicant pursuant to Division 9.3 and Part 1, Schedule 5 of the Environmental Planning and Assessment Act 1979 (EPA Act), in relation to the property at 8 Norwood Avenue, Lindfield NSW 2070, is modified in accordance with s 8.18(4)(c) of the EPA Act in in the terms set out in the Development Control Order at Annexure ‘A’.

L Byrne

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 19 November 2024