Walker v Blue Mountains City Council

[2022] NSWLEC 1672

Land and Environment Court

New South Wales

Medium Neutral Citation:

Walker v Blue Mountains City Council [2022] NSWLEC 1672

Hearing dates:

Conciliation conference on 28 November 2022

Date of orders:

06 December 2022

Decision date:

06 December 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The development control order issued by the Respondent to the First and Second Applicants– being Development Control Order 22/131481 dated 7 June 2022 is pursuant to section 8.18(4)(b) & (c) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order contained at Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER – unauthorised works – 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 s 34

Category:

Principal judgment

Parties:

Dylan Rexon Walker (First Applicant)
Jessica Clare Walker (Second Applicant)
Blue Mountains City Council (Respondent)

Representation:

Counsel:
A Kliese (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Shaw Reynolds (Applicant)
Blue Mountains City Council (Respondent)

File Number(s):

2022/195674

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as the result of Council’s issue of a Development Control Order No. 3, Demolish Works Order (Order) on 7 June 2022, in relation to unauthorised works on a property located at 1 Binstead Street, Faulconbridge. This appeal has been lodged pursuant to s 8.18 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The Order was issued pursuant to s 9.34(1) of the EPA Act, and the terms of the Order are as follows:

‘To demolish or remove from 1 Binstead Street, Faulconbridge NSW all buildings and structures, including the dwelling, all shipping containers, the swimming pool, studio and deck, and solid fencing and gate on the northern side of the property.

All materials are to be disposed of at an approved waste management facility with tipping receipts retained for a period of 12 months and provided to Council on request of Council.’

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 on 28 November 2022. I presided over the conciliation conference.

4. 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 upholding the appeal and modifying the Development Control Order.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18 (4) of the EPA Act to modify the Order in accordance with Annexure A.

6. 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 and explained how they have been satisfied. From this I note the following:

1. The Court has power to modify and/or substitute the development control order, as a demolish works order and a stop use order on the following basis:

1. The buildings and structures that form part of this Demolish Works Order have been erected without planning approval.

2. Item 3, Pt 1, Sch 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.

3. Item 1, Pt 1 Sch 5 of the EPA Act allows a Stop Use Order to be issued when premises are being used for a purpose for which a planning approval is required but has not been obtained.

4. These orders can be issued on the owner of the premises or building, and the Applicants in these proceedings are the owners of the buildings/premises.

5. Section 8.18(4)(b) and (c) of the EPA Act gives the Court sufficiently broad powers to modify and/or substitute the development control order in the manner agreed by the parties and are as follows:

…

(4) On hearing an appeal, the Court may:

…

(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.

…

7. For these 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.

8. 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.

9. The Court notes:

1. The Applicants have lodged an application with the Respondent for a building information certificate on 22 June 2022.

2. The Applicants are to lodge a development application with the Respondent in relation to the site before 23 December 2022. The development application is to be accompanied by a statement of environmental effects, architectural plans, BASIX certificate, a bushfire assessment report, an acoustic report, concept stormwater management plan, a geotechnical report, and a flora and fauna report with respect to he works proposed to be carried out on the land known as 1 Binsted St, Faulconbridge NSW (the Premises).

3. The Applicants undertake to the Respondent:

1. Not to carry out any further works on the unauthorised buildings and/or structures (being those buildings and/or structures referred to in the Terms section of the Order) until such a time as a development consent and a construction certificate has been issued pursuant to section 6.7 of the EPA Act (with the exception of any works to comply with the Demolish Works component of the Order);

2. That occupation of the Premises will cease by 5pm on 31 March 2023 and will not recommence until such time as an occupation certificate is issued pursuant to section 6.9 of the EPA Act and the Order has been revoked by the Respondent; and

3. That they will not lodge an appeal with respect to the development control order contained at Annexure A.

10. The Court orders:

1. The appeal is upheld.

2. The development control order issued by the Respondent to the First and Second Applicants – being Development Control Order 22/131481 dated 7 June 2022 is pursuant to section 8.18(4)(b) & (c) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order contained at Annexure A.

E Washington

Acting Commissioner of the Court

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Annexure A

Decision last updated: 06 December 2022