Tleis v Sutherland Shire Council

[2024] NSWLEC 1340

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tleis v Sutherland Shire Council [2024] NSWLEC 1340

Hearing dates:

Conciliation Conference 11 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) The development control order issued by Sutherland Shire Council on 6 December 2023 (Ref RN2023-026412 NOT 15076) relating to works at 12 Dodson Avenue Cronulla, which is attached at Annexure A (the Order), is modified pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979 as follows:

(i) Under the heading “To Do What”, the Order is amended as follows:

1. Comply with development consent DA21/0078 specifically in relation to the landscape plan, except for the planter boxes adjacent to the western edge of the driveway which can remain and the footpath constructed from the driveway to the side passage of the dwelling, as shown on the amended landscape plans L01 and L02 drawing no 21-4439 dated 6 May 2024 prepared by Zenith Landscape Designs, which is attached at Annexure B.

2. Figure 1 is deleted.

(ii) Under the heading “Period for Compliance”, the Order is amended as follows:

By 30 June 2024, or whenever the premises is listed for sale, whichever is earlier.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Sutherland Shire Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Yousef Tleis (First Applicant)
Kassim Alaouie (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicants)
J Amy (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicants)
Sutherland Shire Council (Respondent)

File Number(s):

2023/464994

Publication restriction:

No

Judgment

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (Ref RN2023-026412 NOT 15076 dated 6 December 2023) issued by the respondent, under s 9.34(1) and Part 1 of Schedule 5 of the EPA Act (DCO), to the applicant in relation to land identified as Lot A in Deposited Plan 348053, known as 12 Dodson Avenue, Cronulla (Site).

2. The DCO comprised Order No 11 – Compliance Order, which required the applicants to comply with Landscape Plan Dwg No 21-4439L01 – Sheet 1 of 2, prepared by Zenith Landscape Designs, dated 20 May 2021 (2021 Landscape Plan). The 2021 Landscape Plan was approved, and required to be complied with, by development consent DA21/0078 which was granted by the respondent on 30 July 2021 for alterations and additions to the existing dwelling house located on the Site (Development Consent).

3. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

4. The Site is zoned R2 Low Density Residential under the Sutherland Shire Local Environmental Plan 2015 (SLEP).

5. The Site is owned by the applicants.

6. At the time the DCO was issued, the following works had been carried out at the front of the Site by or on behalf of the applicants, that were not in accordance with the Development Consent:

1. stairs had been constructed in the front setback;

2. a pathway had been constructed to the side of the property (Pathway);

3. an opening had been created in the front fence;

4. planter boxes had been constructed on the western boundary of the Site that were narrower and contained different plant species than approved (Planters); and

5. pavers and pebbles had been installed in conjunction with non approved plant species in an area designated for specific landscaping by the Development Consent,

6. (collectively, the Works).

7. It was the respondent’s contention that these Works:

1. were constructed in breach of the Development Consent and were unlawful;

2. did not comply with development standards as set out in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 and were therefore unauthorised; and

3. created non-compliance with the landscaping provisions of the EPA Act, SLEP and Sutherland Shire Development Control Plan 2015 (SDCP).

8. The applicant commenced Class 1 proceedings on 22 December 2023, being within the time period specified in s 8.18(3) of the EPA Act.

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held 11 June 2024. I presided over the conciliation conference.

10. Prior to the conciliation process, the parties reached agreement as to the resolution of the proceedings and a s 34 agreement was provided on 5 June 2024. The agreement reached is for the DCO to be modified (Modified Order). The Modified Order generally requires the applicants to remove the Works and comply with the Development Consent. However, the parties have agreed that the applicants may retain the:

1. Pathway; and

2. Planters on the front western boundary.

11. The retention of the existing Pathway and Planters is indicated on the plan attached at Annexure B, which otherwise depicts the Landscape Plan approved by the Development Consent.

Jurisdictional considerations

12. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders substituting the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

13. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, 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.

14. It is clear that the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

15. I am satisfied the DCO should be modified in the manner proposed by the parties on the basis that:

1. The Modified Order is stated to be issued pursuant to Item 11 of Pt 1 of Sch 5 of the EPA Act, being a “compliance order”. The applicants are the owners of the Site such that they are able to be issued with the Modified Order (and DCO as originally issued) pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act.

2. The works required by the Modified Order are works to comply with the Development Consent and therefore fall within the scope of Item 11 of Pt 1 of Sch 5 of the EPA Act and are in accordance with s 9.34 of the EPA Act.

3. The works the subject of the Modified Order resolve the respondent’s concerns in relation to the unauthorised Works.

16. 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.

17. The Court notes that each party is to pay its own costs of the proceedings.

18. The Court orders that:

1. The appeal is upheld.

2. The development control order issued by Sutherland Shire Council on 6 December 2023 (Ref RN2023-026412 NOT 15076) relating to works at 12 Dodson Avenue Cronulla, which is attached at Annexure A (the Order), is modified pursuant to section 8.18(4) of the Environmental Planning and Assessment Act 1979 as follows:

(i) Under the heading “To Do What”, the Order is amended as follows:

1. Comply with development consent DA21/0078 specifically in relation to the landscape plan, except for the planter boxes adjacent to the western edge of the driveway which can remain and the footpath constructed from the driveway to the side passage of the dwelling, as shown on the amended landscape plans L01 and L02 drawing no 21-4439 dated 6 May 2024 prepared by Zenith Landscape Designs, which is attached at Annexure B.

2. Figure 1 is deleted.

(ii) Under the heading “Period for Compliance”, the Order is amended as follows:

By 30 June 2024, or whenever the premises is listed for sale, whichever is earlier.

N Targett

Acting Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 20 June 2024