The Owners of Strata Plan 81812 v Randwick City Council

[2025] NSWLEC 1465

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Owners of Strata Plan 81812 v Randwick City Council [2025] NSWLEC 1465

Hearing dates:

Conciliation conference held on 26 June 2025

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act), the Development Control Order issued to the Applicant by the Respondent on 25 September 2024 pursuant to s 9.34(1)(a) and item 11 of Pt 1 to Sch 5 of the EPA Act in respect of the Premises at SP 81812, located at 36 Bona Vista Avenue, Maroubra NSW 2335, is modified as shown in Annexure A.

Catchwords:

APPEAL – development control order – orders made to modify development control order – agreement between parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Sch 5, Pt 1

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

The Owners of Strata Plan 81812 (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
N Touma (Solicitor) (Applicant)
L Taylor (Solicitor) (Respondent)

Solicitors:
Lionheart Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/392880

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a Development Control Order No 11 issued by Randwick City Council (Council) to The Owners of Strata Plan 81812 (applicant) under s 9.34(1)(a) and Sch 5, Pt 1 of the EPA Act and dated 25 September 2024 (Order).

2. The Order was issued because the development was not being carried out in accordance with the approved development consent DA/168/2016/A dated 4 August 2017 and 18 November 2019, namely the installation of a hot water system, air condition units, screening and vents on the roof, at the premises SP 81812, located at 36 Bona Vista Avenue, Maroubra NSW 2335 (Premises).

3. On 25 September 2024, the Order was served upon the applicant in the following terms:

“You are hereby ordered to comply with Council’s development consent (DA No. DA/168/2016 and DA/168/2016/A) and carry out the following works and requirements:

1. Remove the unauthorised plant and equipment located on the roof of the subject premises, namely the hot water system, air conditioning units, screening, and vents, so as to comply with the approved development consent plans and conditions of consent.”

4. 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 first held on 26 June 2025.

5. The parties now propose resolution of proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 15 May 2025 (Agreement). The parties’ requirements of the Modified Order are as follows:

“You are hereby ordered to comply with Council’s development consent (DA No. DA/168/2016 and DA/168/2016/A) and carry out the following works and requirements:

1. Remove the unauthorised plant and equipment located on the roof of the Premises, namely the hot water storage tank, the four (4) air conditioning units, and the three (3) aluminium screens.

2. Reduce in height the two (2) vertical fireplace flues located on the roof to a height of no higher than 600mm above the roof height.

3. Make the internal fireplaces which are serviced by the two (2) vertical fireplace flues referred to above at order 2 inoperable.

4. Reinstall the hot water system at the location identified in the plan annexed to this Order and marked “A”, subject to such work being carried out in accordance with all relevant Australian Standards, installation specifications and noise criteria in the Codes SEPP 2.6(1)(f1).

5. Provide written confirmation and photographic evidence of compliance with orders 1 to 4 to Council.”

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The decision involves the Court exercising the functions under s 8.18 of the EPA Act to grant consent to modify and/or substitute the Order.

7. Section 8.18(4)(b) and (c) of the EPA Act gives the Court the power to modify and/or substitute the development control order in the manner agreed by the parties. This section provides:

On hearing an appeal, the Court may –

…

(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

…

8. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission by the parties.

9. After a consideration of the submission, 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 for the following reasons:

1. The Council had the power under Item 11 of Pt 1 to Sch 5 of the EPA Act to issue a compliance order to the owner of the premises to comply with a planning approval for the carrying out of works. The parties agree (without admission) that the development at the premises was not being carried out in accordance with development consent DA/168/2016 dated 4 August 2017 or DA/168/2016/A dated 18 November 2019 in certain respects.

2. The parties agree (without admission) that the installation of the hot water storage tank, air conditioning units and screens and vertical fireplace flues on the roof of the premises was not authorised by the consents.

3. The parties also agree (without admission) that Construction Certificate 8445.1 did not authorise the installation of the air conditioning units and screens on the roof the premises as those items had already been installed on the roof of the premises when Construction Certificate 8445.1 was issued.

4. The modified Order proposes a reasonable alternative timeframe for the carrying out of the works required by the Order.

Conclusion and orders

10. As the parties’ decision is within power, I now dispose of the proceedings in accordance with that decision.

11. The Court notes that each party shall pay their own costs of the proceedings.

12. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act), the Development Control Order issued to the Applicant by the Respondent on 25 September 2024 pursuant to s 9.34(1)(a) and item 11 of Pt 1 to Sch 5 of the EPA Act in respect of the Premises, is modified as shown in Annexure A.

S Dixon

Senior Commissioner of the Court 

Annexure A (1.03 MB, pdf)

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Amendments

01 July 2025 - Amendments to para 5 (Grammar and sentence structure)

11 July 2025 - 11 July 2025 - Administrative error to the judgment

17 July 2025 - Amended Annexure A - Parties omitted missing plan for Annexure A

Decision last updated: 17 July 2025