Zhang v Ku-ring-gai Council

[2024] NSWLEC 1809

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Ku-ring-gai Council [2024] NSWLEC 1809

Hearing dates:

Conciliation conference held on 11 November 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders:

(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 17 May 2024 (EPA0111/23), relating to works at Lot 51 in Deposited Plan 551115 and known as 125A Eastern Road Turramurra NSW 2074, issued by the respondent to the applicant, is modified so that:

(a) the “Terms of Order” are deleted and replaced with the following terms:

1. Demolition of the Awning: Demolish the awning on the north-east side of the existing dwelling.

   2. Partial demolition of the Pergola: Demolish that part of the pergola structure that protrudes to the northeast beyond an alignment with the northeastern wall of the main residence so that the pergola structure’s northeastern most point is in line with the northeastern wall of the residence.

(b)   The ‘Period For Compliance With The Order’ is deleted and replaced with: ‘The order is to be carried out by 30 April 2025’.

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 Pt 1

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:

Yaxin Zhang (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
N Nadj (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2024/211187

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 (No EPA0111/23 dated 17 May 2024) issued by the respondent under s 9.34(1) and Pt 1 of Sch 5 of the EPA Act (DCO) to the applicant in relation to land identified as Lot 51 in Deposited Plan 551115 and known as 125A Eastern Road Turramurra NSW 2074 (Site). The DCO comprised Order No 3 – Demolish Works Order, which required the applicant to demolish the erected shelter/awning structure that had been constructed at the rear and side of the Site over the existing swimming pool area and air conditioning unit which had been constructed without consent.

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).

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. construction of an awning roof on the side (north-east) elevation of the existing subject dwelling (Awning); and

2. pergola over the swimming pool (Pergola).

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

1. were constructed without 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

3. had not had an assessment of impact in terms of amenity or the environment, including regarding adequate stormwater disposal.

7. The applicant commenced Class 1 proceedings on 7 June 2024, being within the time period specified in s 8.18(3) of the EPA Act.

8. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 11 November 2024 and adjourned on two occasions. I presided over the conciliation conference.

9. During the conciliation process, the parties reached agreement as to the resolution of the proceedings. The agreement reached is for the DCO to be modified (Modified Order). The Modified Order generally requires the applicant to:

1. demolish the Awning; and

2. partially demolish the Pergola so that it is further setback from the north-eastern side boundary of the Site,

3. by 30 April 2025.

10. The parties provided a signed s 34 agreement reflecting the above agreement on 4 December 2024.

Jurisdictional considerations

11. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders modifying 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.

12. 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.

13. 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.

14. 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 3 of Pt 1 of Sch 5 of the EPA Act, being a “demolition 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 Modified Order requires the demolition of the Awning as per the original DCO and partial demolition of the Pergola which the parties agree were constructed without development consent, however, provides further time for these works to be completed. The works the subject of the Modified Order therefore fall within the scope of Item 3 of Pt 1 of Sch 5 of the EPA Act and are in accordance with s 9.34 of the EPA Act.

3. The parties agree that the demolition of the Awning and partial demolition of the Pergola, will resolve the respondent’s concerns in relation to the Works.

15. 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.

16. The Court notes that:

1. the applicant has provided an undertaking to the respondent to complete certain works at the Site; and

2. each party is to pay its own costs of the proceedings.

17. 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 17 May 2024 (EPA0111/23), relating to works at Lot 51 in Deposited Plan 551115 and known as 125A Eastern Road Turramurra NSW 2074, issued by the respondent to the applicant, is modified so that:

1. the “Terms of Order” are deleted and replaced with the following terms:

1. Demolition of the Awning: Demolish the awning on the north-east side of the existing dwelling.

2. Partial demolition of the Pergola: Demolish that part of the pergola structure that protrudes to the northeast beyond an alignment with the northeastern wall of the main residence so that the pergola structure’s northeastern most point is in line with the northeastern wall of the residence.

2. The ‘Period For Compliance With The Order’ is deleted and replaced with: ‘The order is to be carried out by 30 April 2025’.

N Targett

Commissioner of the Court

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Decision last updated: 17 December 2024