Siviz v City of Parramatta Council

[2021] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation:

Siviz v City of Parramatta Council [2021] NSWLEC 1121

Hearing dates:

Conciliation Conference on 3 March 2021

Date of orders:

10 March 2021

Decision date:

10 March 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) An order that pursuant to s 180(4)(c) and (f) of the Local Government Act 1993, the Order issued by the Respondent to the Applicant dated 9 December 2019 is substituted by the Order as set out in Annexure 'A' to this Agreement.

(3) The Order at Annexure A is made pursuant to s 124 (Order Number 7 and 27 and 28) of the Local Government Act 1993.

Catchwords:

DEVELOPMENT CONTROL ORDERS – fence – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979

Local Government Act 1993

Category:

Principal judgment

Parties:

Rosemary Gay Siviz (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
T To (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s):

19/404181

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against Development Control Orders made by the City of Parramatta Council (hereafter the Council) as it relates to the erection of a fence on Beecroft Reserve South to service Lot 3 DP 29290, also known as 12 Finlay Avenue, Beecroft (hereafter the site).

2. The Council issued the Development Control Orders No. 27 and 28 (hereafter the Order) on 9 December 2019 relating to the construction of a fence and accumulation of materials without consent on land owned by Council, known as Beecroft Reserve South.

3. This Class 1 appeal is made under s 180 of the Local Government Act 1993 (LG Act) against the Order.

4. The Court agreed to the parties’ request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 3 March 2021 by MS Teams.

5. Based on the substituted Order, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The required work, the subject of the substituted Order, is agreed by the parties as being in accordance with Orders 7, 27 and 28, pursuant to s 124 of the LG Act, which require the applicant to relocate the fence, remove unnecessary material from Council land and repair any damage resulting from these works. The parties agree that based on the substituted Order, the Court has power as sought by the parties, pursuant to s 180(4)(c) of the LG Act.

6. The parties agree that the contentions of Council have been considered and are resolved. The parties have also considered the issues raised by residents. The decision of the parties is for the Court to substitute the Order. The parties agree that the terms of the substituted Order are capable of being complied within the time frame identified.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 180(4)(c) of the LG Act, to substitute the Order, as described in Annexure ‘A’.

8. The parties identified the jurisdictional prerequisites of relevance in these proceedings, as being in consistency with the LG Act.

9. The Council agrees that the works in the substituted Order proposed on Council land are consented to by the making of this Order.

10. By the substitution of the Order, the parties agree that the relevant requirements of the LG Act are satisfied and that the Court should not be constrained to substitute the Order as agreed.

11. The terms of the substituted Order have been considered in the context of the site and other relevant legislative provisions. The parties agree that the contentions raised by Council and all jurisdictional requirements are resolved as required, to the satisfaction of the parties.

12. Based on the information before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the substitution of the Order (7, 27 and 28), pursuant to s 180(4)(c) of the LG Act.

13. 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.

14. The Court orders:

1. The appeal is upheld.

2. An order that pursuant to s 180(4)(c) and (f) of the Local Government Act 1993, the Order issued by the Respondent to the Applicant dated 9 December 2019 is substituted by the Order as set out in Annexure 'A' to this Agreement.

3. The Order at Annexure A is made pursuant to s 124 (Order Number 7 and 27 and 28) of the Local Government Act 1993.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (164817, pdf)

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Decision last updated: 10 March 2021