The Owners - Strata Plan No 7933 v Waverley Council

[2022] NSWLEC 1568

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners - Strata Plan No 7933 v Waverley Council [2022] NSWLEC 1568

Hearing dates:

Conciliation conference 17 October 2022

Date of orders:

17 October 2022

Decision date:

17 October 2022

Jurisdiction:

Class 1

Before:

Gray C

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, Developmental Control Order NO-4950 issued by the Respondent to the Applicant on 9 February 2022 is modified in accordance with Annexure A.

Catchwords:

APPEAL – development control order – demolition of a building – conciliation conference – parties agree to modified development control order

Legislation Cited:

Environmental Planning and Assessment Act 1979, Div 9.3, ss 1.4, 8.18, 9.34, Pt 1 Sch 5

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

The Owners - Strata Plan No 7933 (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Strata Specialist Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/66665

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant appeals against a development control order that was issued by Waverley Council on 9 February 2022, which requires it to demolish a detached building at 15 Penkivil Street, Bondi. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The applicant appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the development control order, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The order is issued pursuant to Division 9.3 of the EPA Act and Part 1 of Schedule 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Part 1 of Schedule 5. Item 3 of Part 1 of Schedule 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”. It is not disputed by the applicant that the building the subject of the order required planning approval, and it was erected without approval. In addition, part of the building encroaches on the neighbouring property.

3. 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 held today, 17 October 2022. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed on the same date. The agreement is that the order is modified to require the demolition of that part of the building that encroaches on the adjoining land, and to require some works to be carried out to make good what remains of the building following demolition.

The power to make orders in accordance with the agreement

5. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

6. The parties agree, and I accept, that there is power to issue a Demolish Works Order for part of a building. Item 3 of Part 1 of Schedule 5 of the EPA Act allows a Demolish Works Order to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”, and a building is defined in s 1.4 the EPA Act to include part of a building. Further, I consider that the scope of the power to issue a Demolish Works Order also extends to requiring building works to be carried out to ensure that the remaining building is in a satisfactory state to remain on the site.

7. A Demolish Works Order can be issued to the owner of the building. It is agreed, and I accept, that the applicant is the owner of the building, including that part of the building was erected on the adjoining land.

8. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are 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.

9. I am satisfied that the power under ss 8.18(4)(b) and (4)(f) is sufficiently broad to enable the Court to make orders to modify the development control order in the manner agreed by the parties.

10. I am therefore satisfied that the decision to make orders to modify the order is a decision that the Court can make in the proper exercise of its functions, for the reason that there is a statutory basis under Item 3 of Schedule 5 of the EPA Act to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to modify the development control order or make such other order “with respect to the development control order as the Court thinks fit”.

The outcome of the appeal

11. Having reached the state of satisfaction that the decision is one that the Court could make in the 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. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

12. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act1979, Developmental Control Order NO-4950 issued by the Respondent to the Applicant on 9 February 2022 is modified in accordance with Annexure A.

………………………..

J Gray

Commissioner of the Court

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Annexure A

Decision last updated: 17 October 2022