Staveley v City of Parramatta Council

[2024] NSWLEC 1282

Land and Environment Court

New South Wales

Medium Neutral Citation:

Staveley v City of Parramatta Council [2024] NSWLEC 1282

Hearing dates:

Conciliation conference held on 18 December 2023, 24 January, 29 February, 14 and 27 March 2024

Date of orders:

29 May 2024

Decision date:

29 May 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order dated 6 April 2023, file reference JESI:PF 2023/55/2, relating to works at Lot 6 in Deposited Plan 219418 and known as 37 Hillcrest Avenue, Winston Hills NSW 2153, issued by the respondent to the applicant, is modified in accordance with the Development Control Order 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, Sch 5, Pt 1

Land and Environment Court Act 1979, ss 17, 34

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

Parramatta Local Environmental Plan 2011

Texts Cited:

Standards Australia, AS 1926.1-2012 Swimming pool safety, Part 1: Safety barriers for swimming pools, 2012

Category:

Principal judgment

Parties:

Trevor Staveley (First Applicant)
Chelsea Staveley (Second Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
T Staveley (Self-represented) (First Applicant)
C Staveley (Self-represented) (Second Applicant)
C Zoppo (Solicitor) (Respondent)

Solicitors:
Sparke Helmore (Respondent)

File Number(s):

2023/237592

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 2023/55/2 dated 6 April 2023) issued by the respondent under s 9.34(1) and Pt 1 of Sch 5 of the EPA Act (DCO) to the applicant in relation to land identified as Lot 6 in Deposited Plan 219418, known as 37 Hillcrest Avenue, Winston Hills (Site). The DCO comprised Order No 3 – Demolish Works Order, which required the demolition and removal of the retaining walls adjacent to the northern and eastern property boundaries, along with associated fixtures and fittings, and Order No 10 – Restore Works Order, which required the removal of unauthorised fill located in the rear of the Site and the restoration of the rear yard to the condition it was in prior to the unauthorised works, including the installation of a swimming pool fence compliant with AS1926.1-2012.

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 Site is zoned R2 Low Density Residential under the Parramatta Local Environmental Plan 2011 (PLEP).

4. The Site is owned by the applicants.

5. At the time the DCO was issued, the following works had been carried out at the Site by the previous owners of the Site:

1. A retaining wall of approximately 1m in height and associated fill had been constructed within 900mm of the northern property boundary.

2. A retaining wall of approximately 1m in height and associated fill had been constructed within 900mm of the eastern property boundary.

3. A paved area measuring approximately 100m² had been constructed around the swimming pool and adjacent to the northern and eastern property boundaries,

(collectively, the Works).

6. It was the respondent’s contention that the Works:

1. were constructed without consent and were unlawful;

2. did not comply with development standards as set out in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 and were therefore unauthorised; and

3. were causing ongoing and unreasonable amenity impacts by way of encroachment onto adjoining properties, impacts to stormwater runoff and visual amenity.

7. The DCO was posted to the applicant on 22 June 2023 and received by the applicants via post on 4 July 2023. The parties agree that the DCO was therefore “given” to the applicants on 4 July 2023 for the purposes of s 8.18(3) of the EPA Act.

8. The applicant commenced Class 1 proceedings on 26 July 2023, being within the time period specified in s 8.18(3) of the EPA Act.

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 18 December 2023 and adjourned a number of times. I presided over the conciliation conference.

10. During the conciliation process, the parties reached agreement as to the resolution of the proceedings. The agreement reached is for the DCO to be modified (Modified Order). The Modified Order generally requires:

1. The applicant to engage a structural engineer within 28 days of the issue of the Modified Order to provide a certificate confirming that the retaining wall along the eastern property boundary with 63 Caroline Chisholm Drive is structurally sound (Eastern Retaining Wall Certificate). If such a certificate cannot be obtained, the applicant must procure advice from a structural engineer as to the works required to obtain the Eastern Retaining Wall Certificate and complete any works required within 8 months of the issue of the Modified Order.

2. To remove the existing garden shed from its current location and relocate the pool equipment to the location marked on the General Layout Plan forming part of the plans attached to the Modified Order (Layout Plan) within 8 months of the issue of the Modified Order.

3. Remove the tiles, concrete and base material for the tiled area marked in green on the Layout Plan and replace with turf or sowed grass seeds so that the final level (including grass and topsoil) is no higher than the surrounding tiled area within 8 months of the issue of the Modified Order.

4. In the area marked cream on the Layout Plan:

1. remove the tiles, concrete and any base material;

2. excavate to the level of natural ground level (prior to the Works);

3. install a concrete “v” drain or dish drain from the north eastern corner with a gradient of at least 1% to drain waters to the areas described as the existing lawn; and

4. install a retaining wall at the location indicated on the plans attached to the Modified Order,

5. within 8 months of the issue of the Modified Order.

11. The parties provided a signed s 34 agreement reflecting the above agreement on 4 April 2024.

Jurisdictional considerations

12. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders substituting 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.

13. 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.

14. 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.

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

1. The Modified Order is stated to be issued pursuant to Items 3, 5 and 10 of Pt 1 of Sch 5 of the EPA Act, being a “demolish works order”, “repair order” and “restore works order” respectively. Although the applicants did not carry out the Works the subject of the DCO, they are the owners of the Site such that they are able to be issued with the Modified Order (and DCO as originally issued) pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act.

2. The works to demolish the unlawful paving and garden shed, excavate fill and restore various parts of the rear of the Site to turf/grass, repair, or ensure the structural soundness of the retaining walls so that they do not become or remain a danger to persons or property in the neighbourhood, and the installation of appropriate drainage and retaining walls to otherwise restore the Site, fall within the scope of Items 3, 5 and 10 of Pt 1 of Sch 5 of the EPA Act and is therefore in accordance with s 9.34 of the EPA Act.

3. The works the subject of the Modified Order resolve the respondent’s concerns in relation to the unauthorised Works.

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.

17. The Court notes that each party is to pay its own costs of the proceedings.

18. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order dated 6 April 2023, file reference JESI:PF 2023/55/2, relating to works at Lot 6 in Deposited Plan 219418 and known as 37 Hillcrest Avenue, Winston Hills NSW 2153, issued by the respondent to the applicant, is modified in accordance with the Development Control Order at Annexure A.

N Targett

Acting Commissioner of the Court

237592.23 Annexure A

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Decision last updated: 29 May 2024