Strata Plan 87988 v Newcastle City Council

[2023] NSWLEC 1307

Land and Environment Court

New South Wales

Medium Neutral Citation:

Strata Plan 87988 v Newcastle City Council [2023] NSWLEC 1307

Hearing dates:

Conciliation Conference 2 June 2023

Date of orders:

20 June 2023

Decision date:

20 June 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979:

(a) Development Control Order NO2020/0094/A issued to the Applicant by the Respondent on 22 December 2022 pursuant to section 9.34(1)(b) of the Environmental Planning and Assessment Act1979 in respect of the premises identified as SP 87988 located at 5 Bolton Street, Newcastle is modified in the terms set out at Annexure A.

(b) Development Control Order NO2020/0094/A issued to the Applicant by the Respondent on 22 December 2022 pursuant to section 9.34(1)(b) of the Environmental Planning and Assessment Act1979 in respect of the premises identified as SP 87988 located at 5 Bolton Street, Newcastle as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – fire safety – modified order - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.18, 9.34

Land and Environment Court Act 1979, ss 34, 39

Category:

Principal judgment

Parties:

Strata Plan 87988 ABN 60118132244 (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
A Sinclair (Solicitor) (Respondent)

Solicitors:
Peter Evans & Associates Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/18019

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal filed 18 January 2023 against the Development Control Order NO2020/0094/A issued to the Applicant by the Respondent on 22 December 2022 (DCO) pursuant to s 9.34(1)(b) of the EPA Act in respect of the premises identified as SP 87988 located at 5 Bolton Street Newcastle NSW 2300 (the Site).

2. 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 2 June 2023. I presided over the conciliation conference.

3. 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 DCO.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify the DCO.

6. The parties have agreed on the terms of a modified DCO which requires fire safety upgrade works to be carried out on the Site in a manner that would resolve the contentions in the proceedings.

7. Pursuant to s 8.18(4) of the EPA Act and s 39(2) of the LEC Act, the Court may lawfully modify the DCO.

8. 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.

9. 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

10. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979:

1. Development Control Order NO2020/0094/A issued to the Applicant by the Respondent on 22 December 2022 pursuant to section 9.34(1)(b) of the Environmental Planning and Assessment Act1979 in respect of the premises identified as SP 87988 located at 5 Bolton Street, Newcastle is modified in the terms set out at Annexure A.

2. Development Control Order NO2020/0094/A issued to the Applicant by the Respondent on 22 December 2022 pursuant to section 9.34(1)(b) of the Environmental Planning and Assessment Act1979 in respect of the premises identified as SP 87988 located at 5 Bolton Street, Newcastle as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

18019.23 Annexure A

18019.23 Annexure B

**********

Decision last updated: 20 June 2023