Thompson v Liverpool City Council

[2021] NSWLEC 1072

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thompson v Liverpool City Council [2021] NSWLEC 1072

Hearing dates:

Conciliation conference on 20 November 2020, 10 December 2020 and 28 January 2021

Date of orders:

17 February 2021

Decision date:

17 February 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The Court finds pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979 that the Development Control Order issued by the Respondent to the Applicants on 26 August 2020 is sufficiently complied with by the Applicants.

The Court notes the parties’ agreement that there be no order as to costs in relation to these proceedings.

Catchwords:

DEMOLISH WORKS ORDER & RESTORE WORKS ORDER – roofed pergola – concrete slab – non-portable in-ground swimming pool – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Gregory Robert Thompson (First Applicant)
Paula Andrea Thompson (Second Applicant)
Liverpool City Council ABN 84 181 182 471 (Respondent)

Representation:

Counsel:
T Ward (Solicitor) (Applicants)
R O’Gorman-Hughes (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicants)
Liverpool City Council (Respondent)

File Number(s):

2020/252707

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal by the Applicants against the Respondent’s Development Control Order dated 26 August 2020 No. 245/2020 (DCO) in relation to the property known as 132 Bardia Parade, Holsworthy NSW (the Property) being Lot 430 in Deposited Plan 854502 in the Local Government Area of Liverpool City Council. 

2. The DCO was issued pursuant to Division 9.3 and Schedule 5 of the Environmental Planning & Assessment Act 1979 (EPA Act).  The DCO is a Demolish Works Order & Restore Works Order, and required the Applicants to demolish or remove buildings, being: 

1. the roofed pergola located at the rear of the property, along the northern and western boundary, measuring approximately 31.6m² (the roofed pergola);

2. the concrete slab under the roofed pergola located at the rear of the property, along the northern and western boundary, measuring approximately 31.6m² (the concrete slab); and

3. The non-portable, in-ground swimming pool located at the rear of the property (the swimming pool). Part 8 s 8.18 of the EPA Act, and the appeal was filed on 31 August 2020, within the time prescribed by s 8.18 (3) (a) of the EPA Act.

3. The appeal falls within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 20 November 2020, 10 December 2020 and 28 January 2021. I presided over the conciliation conference.

The Legislation

Environmental Planning and Assessment Act 1979

Division 9.3

9.34 Orders that may be given (cf previous s 121B)

(1) The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,

(b) fire safety orders in accordance with the table to Part 2 of Schedule 5,

(c) brothel closure orders in accordance with the table to Part 3 of Schedule 5.

(2) The regulations may amend those tables.

(3) A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).

Note—

See also Part 4 of the Building Products (Safety) Act 2017.

9.35 Relevant enforcement authorities who may give orders (cf previous ss 121B, 121C)

(1) Development control orders may be given by the following (a relevant enforcement authority)—

…

(b) a council,

…

9.36 Provisions relating to orders (cf previous s 121B)

Part 4 of Schedule 5 contains provisions relating to the giving of orders and related matters.

Schedule 5 Development control orders

Column 1	Column 2	Column 3
To do what?	When?	To whom?
4	Stop Demolition Order To stop demolishing, or not to demolish, a building	Demolition requiring a planning approval is being carried out, or would be carried out, without approval or in contravention of an approval.	• The owner of premises • The person carrying out the demolition or likely to carry out the demolition

Part 6 Notices to be given

8   Notice to be given of proposed order to person who will be subject to order

(1)  Before giving a development control order, a relevant enforcement authority must give notice to the person    to whom the proposed order is directed of the following—

(a)  the intention to give the order,

(b)  the terms of the proposed order,

(c)  the period proposed to be specified as the period within which the order is to be complied with,

(d)  that the person to whom the order is proposed to be given may make representations to the relevant enforcement authority as to why the order should not be given or as to the terms of or period for compliance with the order.

(2)  The notice may provide that the representations are to be made to the relevant enforcement authority or a    nominated person on a nominated date, being a date that is reasonable in the circumstances of the case.    In the case of a council this may be to a specified committee of the council on a specified meeting date    or to a specified employee of the council on or before a specified date.

8.18   Appeals concerning orders (cf previous s 121ZK)

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(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.

Land and Environment Court Act 1979

17 Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

…

(d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

…

39 Powers of Court on appeals

(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(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.

(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A) (Repealed)

(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

The Parties’ Agreement

5. 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. This decision involved the Court finding pursuant to s 8.18(4)(d) of the EPA Act that the DCO is sufficiently complied with by the Applicants.

6. 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. The parties’ decision involves the Court exercising the function under ss 8.18(4)(d) of the EPA Act and s 39 of the LEC Act by the Court finding that the DCO has been sufficiently complied with by the Applicants.

Jurisdictional Prerequisites

7. 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 to be:

1. On 26 August 2020 the Respondent gave the Applicants a DCO under Division 9.3 of the EPA Act.

2. The Applicants filed their appeal on 31 August 2020, within 28 days being the time limit provided by s 8.18(3)(a) of the EPA Act.

3. Prior to the commencement of the s 34 Conciliation Conference on 20 November 2020, the Applicants carried out certain works required by the DCO, including the removal of a non-portable above ground    swimming pool and most of the pergola on the Applicants’ Property. The remainder of the pergola was removed by the Applicants in December 2020.

4. The Applicants have not removed the concrete slab under the pergola (which has existed at the property for up to 38 years). However, the Respondent no longer requires the removal of the slab, having been provided with the opportunity to inspect the slab during the Conciliation Conference and assess the likely drainage and other impacts.

8. For the following reasons, 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:

1. The Property falls within the Local Government Area of the City of Liverpool in accordance with Division 9.3, s 3.35 (1) (b) of the EPA Act, and therefore the Respondent was the relevant authority to issue the DCO.

2. In accordance with Part 6 s 8 of Schedule 5 to the EPA Act, the Respondent gave the Applicants a Notice of Proposed Demolish Works Order and Restore Works Order on 21 July 2020.

3. The Respondent issued the DCO pursuant to Division 9.3 and Schedule 5 of the EPA Act on 27 August 2020.

4. The Applicants filed their Class 1 appeal in the Court in accordance with the time prescribed by s 8.18(3)(a) of the EPA Act.

5. A Conciliation Conference was held in accordance with s 34 of the LEC Act.

6. Prior to the Conciliation Conference the Applicants removed the non-portable, in-ground swimming pool located at the rear of the Property, and part of the pergola.

7. During the Conciliation Conference the Applicants removed the remainder of the pergola, and the Respondent was able inspect the slab and assess the likely drainage and other impacts of allowing the slab to remain in-situ.

8. By the end of the s 34 Conciliation Conference the Respondent no longer required the slab to be removed.

9. I make the Orders in accordance with the provisions of s 8.18(4)(d) of the EPA Act and s 39 (5) of the LEC Act.

9. 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.

Orders

10. The Court orders:

1. The Court finds pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979 that the Development Control Order issued by the Respondent to the Applicants on 26 August 2020 is sufficiently complied with by the Applicants.

The Court notes the parties’ agreement that there be no order as to costs in relation to these proceedings.

………………………… 

M Peatman 

Acting Commissioner of the Court 

**********

Decision last updated: 17 February 2021