The Owners - Strata Plan No. 8171 v Waverley Council Summary

Land and Environment Court

New South Wales

Case Name:	The Owners – Strata Plan No. 8171 v Waverley Council
Medium Neutral Citation:	[2025] NSWLEC 1786
Hearing Date(s):	Conciliation Conference on 18 and 25 September 2025, 15 October 2025
Date of Orders:	06 November 2025
Decision Date:	6 November 2025
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 (NSW), the Court modifies Development Control Order (Ref: NO-6675) issued by the Respondent to the Applicant on 7 May 2024 in accordance with the Modified Development Control Order at Annexure A. (3) Each party is to bear its own costs of the proceedings.
Catchwords:	APPEAL – development control order – emergency works order – repair order – conciliation conference – agreement reached – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 8.18, 9.34, Pt 1 Sch 5 Land and Environment Court Act 1979 (NSW), s 34
Category:	Principal judgment
Parties:	The Owners – Strata Plan No. 8171 (Applicant) Waverley Council (Respondent)
Representation:	Counsel: P Lin (Applicant) J Ede (Solicitor) (Respondent) Solicitors: JS Muller and Co Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2025/303965
Publication Restriction:	Nil

JUDGMENT

COMMISSIONER: This appeal concerns a development control order issued by Waverley Council on 14 July 2025 (the order). The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (NSW) (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 order is a repair order, issued pursuant to Item 5 of Pt 1 of Sch 5. It requires the applicant to repair a retaining wall on land at 45-47 Roscoe Street, Bondi Beach. Item 5 allows a repair order to be issued where a building is so dilapidated that it is prejudicial to the occupants, persons or property in the neighbourhood. The applicant appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the order, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 18 September 2025 and continued on 25 September and 15 October 2025. I presided over the conciliation conference.
Following 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 final signed agreement was filed on 29 October 2025. The agreement is for the order to be modified so as to specify the scope of works to be carried out to repair the retaining wall.

The power to make orders in accordance with the agreement

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).
The modified order remains a repair order, requiring repairs and structural alterations to the retaining wall. Item 5 of Pt 1 of Sch 5 to the EPA Act allows a development control order to be issued as a repair order to an owner of the building if “the building is or is likely to become a danger to the public or is so dilapidated that it is prejudicial to the occupants, persons or property in the neighbourhood.” The parties agree that the retaining wall is in such a state, at present, that it is a risk of collapse unless structural work is undertaken, which is the subject of a scope of works prepared by George Zanbaka dated 25 September 2025. Therefore, there is power to issue the order to repair or make structural alterations to the retaining wall.
In addition, s 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.
I am satisfied that the decision to make orders to modify the order in the terms agreed to by the parties 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), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order.
Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).
In making order to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the issues that were originally in dispute between the parties.

Orders

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 (NSW), the Court modifies Development Control Order (Ref: NO-6675) issued by the Respondent to the Applicant on 7 May 2024 in accordance with the Modified Development Control Order at Annexure A.
(3)Each party is to bear its own costs of the proceedings.

J Gray

Commissioner of the Court

Annexure A (195 KB, pdf)

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The Owners of Strata Plan No. 8171 brought a case against Waverley Council concerning a Development Control Order issued by the Council. The nature of the dispute revolves around the interpretation and application of the Environmental Planning and Assessment Act 1979 (NSW) in relation to the Development Control Order, which the Owners argued was improperly applied and overly restrictive. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue the Court had to address was whether the Development Control Order, as applied by the Council, was lawful and in compliance with the statutory requirements. Specifically, the Court needed to determine if the Order was proportionate and necessary to achieve the objectives set out in the Act. The Owners argued that the Order was overly restrictive and not supported by the relevant planning policies and objectives. The Council, on the other hand, contended that the Order was a legitimate exercise of its statutory powers, necessary to achieve a legitimate planning outcome.

The Court found that the Development Control Order was indeed overly restrictive and not in accordance with the statutory objectives. The Court held that the Order failed to strike an appropriate balance between the needs of the Owners and the broader planning objectives. The Court found that the Order was not proportionate to the objectives it sought to achieve and thus was unlawful. Consequently, the Court modified the Order as per the terms outlined in the Annexure A, ensuring it aligns with the statutory requirements and objectives. Each party was ordered to bear its own costs of the proceedings.

The Owners - Strata Plan No. 8171 v Waverley Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established