Upson v Ku-ring-gai Council

[2024] NSWLEC 1283

Land and Environment Court

New South Wales

Medium Neutral Citation:

Upson v Ku-ring-gai Council [2024] NSWLEC 1283

Hearing dates:

Conciliation Conference 24 April, 8 May 2024

Date of orders:

29 May 2024

Decision date:

29 May 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

See orders at [18] below.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.10, 8.18, 9.34, Sch 5

Land and Environment Court Act 1979, ss 17, 34

Ku-ring-gai Local Environmental Plan 2015

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Category:

Principal judgment

Parties:

Jemma Upson (First Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/360086

Publication restriction:

Nil

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 (No. EPA0103/23 dated 30 October 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 30 Sec A in Deposited Plan 3277 and Lot B in Deposited Plan 354707 and known as 54 Roseville Avenue, Roseville NSW 2069 (Site). The DCO comprised Order No. 3 – Demolish Works Order, which required the removal of steel reinforcing that was placed in the open trenches in the front yard of the Site and the demolition and removal of the retaining walls constructed without consent, and Order No. 10 – Restore Works Order, which required the reinstatement of the front garden area to its previous condition and the backfilling of the open trenches in the front yard.

2. 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

3. The Site is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP) and located within Heritage Conservation Area C32 under the KLEP.

4. The Site is owned by the applicant.

5. At the time the DCO was issued, the following works had been carried out at the Site (collectively, the Works):

1. the excavation of trenches;

2. laying of reinforcing steel into the open trenches;

3. installation of plumbing; and

4. the construction of a new Dincel™ retaining wall adjacent to the western boundary of the Site, comprised of a plastic exoskeleton supporting internally reinforced concrete supported on a reinforced concrete footing (Retaining Wall). The parties agree that prior to the construction of the Retaining Wall the subject of the DCO, a previous 230mm brick retaining wall existed at that general location but was removed by or on behalf of the applicant due to its state of disrepair and perceived risk of failure and damage to life or property.

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

1. were constructed without consent and were unlawful;

2. had not been subject to an assessment process to determine permissibility;

3. had not had an assessment of impact in terms of amenity or the environment or compliance with the appropriate sections of the Building Code of Australia, Structural Requirements or Australian Standards by the relevant approval body; and

4. did not comply with development standards as set out in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

7. The applicant commenced Class 1 proceedings on 13 November 2023, being within the time period specified in s 8.18(3) of the EPA Act.

8. Separately, on 5 December 2023, the respondent issued a Building Information Certificate (No eBCU0106/23) in respect of the “Retaining Wall at the front yard along the southwestern side – 10(b)” (BIC).

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 24 April 2024 and adjourned to 8 May 2024. I presided over the conciliation conference.

10. During the conciliation process, the parties reached agreement as to the resolution of the proceedings. It was agreed that due to the issue of the BIC, the only issue in dispute was the final treatment of the Retaining Wall. The agreement reached is for the DCO to be modified (Modified Order). The Modified Order generally requires the applicant to undertake the following works to the Retaining Wall, for the length of that wall from the site frontage to the side pedestrian gate, by 3 August 2024:

1. The Retaining Wall is to be clad:

1. on its vertical face with pointed brick tiles generally matching the face brickwork of the existing dwelling;

2. upon the top of the wall, capping stones to be a minimum of 50mm thick and to protrude past the brick clad retaining wall by 50mm so to provide an adequate drip edge; and

3. capping stones to be a minimum of 600mm length and to be a yellowblock or similar sandstone with light colour veining/variation.

2. Pointing in respect to:

1. the sandstone capping to be similar in colour to the sandstone (no grey cement); and

2. the brick tiles to be similar to the brickwork to the existing dwelling.

11. The parties provided a signed s 34 agreement reflecting the above agreement on 15 May 2024.

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 agreed by the parties to be issued pursuant to Item 10 of Pt 1 of Sch 5 of the EPA Act, being a “restore works order”. The applicant is the owner 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 to finish the Retaining Wall will effectively “restore” the front garden of the Site to the condition it was in before the unlawful works occurred, namely to ensure (in conjunction with the BIC already granted) that there is a retaining wall in the same location, serving the same function and of the same brick appearance as the previous retaining wall that was removed. The works the subject of the Modified DCO therefore fall within the scope of Item 10 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, including the appearance of the Retaining Wall having regard to the heritage conservation area in which the Site is located.

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. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order dated 30 October 2023 (EPA0103/23), relating to works at Lot 30 Sec A in Deposited Plan 3277 and Lot B in Deposited Plan 354707 and known as 54 Roseville Avenue, Roseville NSW 2069, issued by the respondent to the applicant, is modified so that the “Terms of Order” are deleted and replaced with the following terms:

1. By 3 August 2024, the applicant is to undertake the following works to the retaining wall located adjacent to the south-western boundary, for the length of the retaining wall from the site frontage to the side pedestrian gate:

1. The retaining wall is to be clad:

1. on its vertical face with pointed brick tiles generally matching the face brickwork of the existing dwelling;

2. upon the top of the wall, capping stones to be a minimum of 50mm thick and to protrude past the brick clad retaining wall by 50mm so to provide an adequate drip edge; and

3. capping stones to be a minimum of 600mm length and to be a yellowblock or similar sandstone with light colour veining/variation.

2. Pointing in respect to:

1. the sandstone capping to be similar in colour to the sandstone (no grey cement); and

2. the brick tiles to be similar to the brickwork to the existing dwelling.

N Targett

Acting Commissioner of the Court

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Decision last updated: 30 May 2024