Tahany Pty Ltd v Hunter's Hill Council

[2024] NSWLEC 1311

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tahany Pty Ltd v Hunter’s Hill Council [2024] NSWLEC 1311

Hearing dates:

Conciliation conferences on 12 April 2024, 6 May and 16 May 2024

Date of orders:

11 June 2024

Decision date:

11 June 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

In the matter of 2023/271146:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicant dated 3 August 2023, is substituted with a development control order in the terms set out in Annexure A.

In the matter of 2023/271190:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicant dated 3 August 2023, is substituted with a development control order in the terms set out in Annexure B.

In the matter of 2023/273475:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicant dated 3 August 2023, is substituted with a development control order in the terms set out in Annexure C.

Catchwords:

DEVELOPMENT CONTROL ORDER – demolish works order – public safety order – restore works order – heritage conservation area - conciliation conference – agreement between the parties to substitute orders – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, Div 9.3, ss 6.26, 8.18, 9.34, Sch 5

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Tahany Pty Ltd (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
M Staunton and C Koikas (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Penhall & Co Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/273475
2023/271190
2023/271146

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These three Class 1 appeals are made pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against development control orders (DCO) issued by Hunter’s Hill Council on 3 August 2023. The DCO’s were issued pursuant to Div 9.3, s 9.34(1)(a) of the EPA Act for the following:

• 2023/271146 – Demolish Works Order in relation to fencing (‘fence order’)

• 2023/271190 – Restore Works Order in relation to internal and external alterations to the dwelling (‘internal and external works order’)

• 2023/273475 - Demolish Works Order and Restore Works Order in relation to earthworks and retaining walls (‘earthworks order’)

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 April 2024 and subsequent conferences on 6 May and 16 May 2024. I have 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, as filed to the Court 16 May 2024. This decision involved the Court upholding the appeals and substituting the respective development control orders.

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.

5. The parties’ decision involves the Court exercising the function under s 8.18(4)(c) and (f) of the EPA Act to substitute all three orders issued 3 August 2023 with new DCO’s.

Jurisdictional Prerequisites

6. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

2023/271146 - Fence order

7. The substituted fence order falls within Sch 5 of the EPA Act, as a combined Demolish Works Order (Item 3) of a building and inclusion of a Public Safety Order (Item 7) to erect structures in relation to fencing in a heritage conservation area.

8. I accept that a broad interpretation of a ‘building’, as defined under s 1.4 of the EPA Act and in the context of Sch 5, extends to a fence. I accept that the ordinary meaning of ‘structure’ also includes a fence. The parties agree and I accept that the substituted order meets the requirements of Items 3 and 7 of Sch 5 and is to be issued to the owner of the property. I am satisfied that pursuant to s 8.18(4)(c) and (f), the substitution of the fence order is within the power of the Court.

2023/271190 – Internal and external works order

9. The substituted internal and external works order falls within Sch 5 of the EPA Act as a Restore Works Order (Item 10) in relation to unauthorised external façade works to a dwelling (building) in a heritage conservation area.

10. I accept the parties’ agreement that the substituted internal and external works for the unauthorised external works, which will not include any internal works, and restoration works to the dwelling facade in a heritage conservation area meets the requirements of Sch 5. The substituted order is to be issued to the owner of the property. I am satisfied that pursuant to s 8.18(4)(c) and (f), the substitution of the internal and external works order is within the power of the Court.

2023/273475 – Earthworks order

11. The substituted earthworks order falls within Sch 5 of the EPA Act as a Restore Works Order (Item 10) in relation to unauthorised earthworks and associated retaining walls in the front setback of a property within a heritage conservation area.

12. I accept that earthworks require development consent and that a broad interpretation of a ‘building’, as I have set out in [8], extends to earthworks in this instance. Reference to the unauthorised retaining walls has been removed from the proposed earthworks orders (resulting in removal of Item 3). I accept the parties’ agreement that the substituted earthworks order for restoration and other works meets the requirements of Sch 5. The substituted order is to be issued to the owner of the property. I am satisfied that pursuant to s 8.18(4)(c) and (f), the substitution of the earthworks order is within the power of the Court.

Conclusion

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. 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.

15. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

16. The Court notes the following terms of the respective agreements (which are the same across all three proceedings):

1. This Note comprises the Respondent informing the Applicant pursuant to s 6.26(7) of the Environmental Planning and Assessment Act 1979 of the work that would need to be done before the Respondent could issue Building Information Certificate No. BIC-2023-005 (NSW Planning Portal No. BIC-21908), with such work comprising carrying out works in accordance with the Development Control Orders at Annexure A, B and C to the agreements pursuant to s 34 of the Land and Environment Court Act 1979 in Land and Environment Court Proceedings Nos 2023/271190, 2023/273475 and 2023/271146 to the Respondent's satisfaction.

2. The Applicant will notify the Respondent when the works, the subject of the Development Control order at Annexure A, B and C have been carried out.

3. Upon the works in Annexure A, B and C being completed to the Respondent’s satisfaction:

1. the Respondent will, subject to and in accordance with the law, issue a building information certificate in relation to Building Information Certificate No. BIC-2023-005 (NSW Planning Portal No. BIC-21908); or

2. if required by the Respondent, the Applicant will lodge a further building information certificate application for the works in Annexure A, B and C, for which the Council will issue a building information certificate subject to and in accordance with the law.

Orders:

17. The Court orders:

In the matter of 2023/271146:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicant dated 3 August 2023, is substituted with a development control order in the terms set out in Annexure A.

In the matter of 2023/271190:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicant dated 3 August 2023, is substituted with a development control order in the terms set out in Annexure B.

In the matter of 2023/273475:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by the Respondent to the Applicant dated 3 August 2023, is substituted with a development control order in the terms set out in Annexure C.

……………………….

S Porter

Commissioner of the Court

271146.23 Annexure A

271190.23 Annexure B

273475.23 Annexure C

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Decision last updated: 11 June 2024