The Owners Strata Plan No 78825 v Northern Beaches Council

[2024] NSWLEC 1683

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Owners – Strata Plan No 78825 v Northern Beaches Council [2024] NSWLEC 1683

Hearing dates:

24 October 2024

Date of orders:

24 October 2024

Decision date:

24 October 2024

Jurisdiction:

Class 2

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 180(4)(c) of the Local Government Act 1993 (LG Act), the order issued under s 124 of the LG Act by the respondent to the applicant on 5 September 2023 be substituted with the order annexed to these orders and marked A.

(3) The Class 2 Application is otherwise dismissed.

Catchwords:

APPEAL – order under the Local Government Act – landslide risk – parties agree on revised order – order substituted with revised order

Legislation Cited:

Land and Environment Court Act 1979, s 39

Local Government Act 1993, ss 124, 180

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 78825 (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
D Robertson (Respondent)

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

File Number(s):

2023/313247

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: The applicant is the owner of SP78825, which is located at 118B Parkes Road Collaroy Plateau (118B) and comprises 8 townhouses. To the south of 118B, and adjoining that land, is land owned by Northern Beaches Council (the Council) which is Lot 52, Parkes Road Reserve 1 (Lot 52). Lot 52 slopes steeply away from 118B, and landslips have occurred affecting both lots. The most recent landslip, in March 2022, resulted in the movement in the fill below a number of the townhouses, exposing the concrete slab and stormwater pipes. On 5 September 2023, the Council issued an order to the applicant to carry out works to make the land safe (the Order), pursuant to s 124 of the Local Government Act 1993 (LG Act). The applicant appeals to the Court against the Order, pursuant to s 180 of the LG Act.

2. Section 124(1) of the LG Act provides that:

A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

3. The order relies on Item 21 in the Table in s 124, which provides the following:

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
21	To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition	The land or premises are not in a safe or healthy condition	Owner or occupier of land or premises

4. The parties have now reached an agreement to substitute the Order with a revised order. The revised order relies on an agreed concept design for a stabilising system to make the land safe. The revised order requires the applicant to submit to the Council a geotechnical engineering report that underpins the concept design, as well as detailed design plans. Following approval of the same, the revised order then requires works to be undertaken within 18 months. For the reasons that follow, I consider it appropriate to allow the appeal and make an order for the Order to be substituted by that which is agreed to by the parties.

The role of the Court on appeal

5. In considering the appeal, the role of the Court is to exercise the functions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 (LEC Act) provides as follows:

39 Powers of Court on appeals

...

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal...

6. In addition, s 180(4) of the LG Act sets out the powers of the Court on an appeal against an order. Those powers are as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the council could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.

The agreed evidence of the engineers

7. Expert opinion evidence on the engineering issues, including the geotechnical history and existing characteristics of the slope was given by Mr Troy Crozier, a geotechnical engineer engaged by the applicant, Mr Stewart McGeady, a structural engineer engaged by the applicant, and Mr Andrew Leventhal, a geotechnical engineer engaged by the Council.

8. The agreed evidence of the engineers, expressed in their joint report, is that there continues to be a landslide risk on 118B. Their evidence is that, inter alia, there is currently no support to the fill beneath the townhouses located on 118B.

9. I give this summary simply, for the purpose of giving some background to the parties’ agreement, and acknowledge that there is a complicated history to this matter and various geotechnical issues in play on the slope, including issues concerning stormwater runoff from both 118B and a council easement.

The outcome of the appeal

10. As set out earlier, s 180(4)(c) of the LG Act gives the Court the power to substitute the Order with the revised order agreed to by the parties.

11. In addition, based on the agreed evidence of the engineers, I am satisfied that the requirements of Item 21 in the Table of s 124 of the LG Act are met. At present, the land is not in a safe condition due to the ongoing landslide risk. The agreed substitute order will ensure that the applicant, who is the owner of the land, will do what is specified to ensure that the land is placed in a safe condition.

12. I therefore accept the parties’ position that the substitute order is appropriate in the circumstances, and make the orders sought by the parties in their agreed short minutes of order.

13. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 180(4)(c) of the Local Government Act 1993 (LG Act), the order issued under s 124 of the LG Act by the respondent to the applicant on 5 September 2023 be substituted with the order annexed to these orders and marked A.

3. The Class 2 Application is otherwise dismissed.

14. The Court notes that the parties agree that each party will bear its own costs of the application.

J Gray

Commissioner of the Court

Annexure A

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Amendments

25 October 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) correction is made to paragraph 7 to include the geotechnical engineer engaged by the respondent.

Decision last updated: 25 October 2024