Zoro Developments Pty Ltd v Northern Beaches Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zoro Developments Pty Ltd v Northern Beaches Council [2020] NSWLEC 1349

Hearing dates:

7-8 July 2020

Date of orders:

07 August 2020

Decision date:

07 August 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Refer to orders at [92] below

Catchwords:

APPEAL – development control order – stop works order – development not carried out in accordance with construction certificate – risk of land slippage – how discretion should be exercised in the circumstances

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Local Government Act 1993

Protection of the Environment Operations Act 1997

Cases Cited:

Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404

Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Zoro Developments Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
A Pickles SC (Respondent)

Solicitors:
Project Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/78744

Publication restriction:

No

Judgment

1. COMMISSIONER: On a steep battle-axe site on the harbour foreshore at 67 Seaforth Crescent, Seaforth, construction has commenced of a new two-storey detached dwelling with a double car hardstand parking area and an inclinator. On 20 February 2020, Northern Beaches Council (“the Council”) issued a stop work order to stop building works being carried out at the site (“the order”). The order is a type of development control order and is issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows a development control order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. It was issued because the Council was concerned that the works being undertaken at the property were not undertaken in accordance with the EPA Act, in that they were not consistent with the development consent 127/06 (“the consent”) for the carrying out of the development and the subsequent construction certificate CC2018/0826 (“the construction certificate”) in respect of the consent. The order was issued to the owner of the land, Zoro Developments Pty Ltd (“Zoro”). Zoro appeals against the order, pursuant to s 8.18 of the EPA Act.

2. The order is issued pursuant to Item 2 of Part 1 of Schedule 5, which allows an order to be issued to “stop building work or subdivision work carried out in contravention of this Act”, but only if the building work or subdivision work is carried out “in contravention of this Act” or “in a manner that would affect the support of adjoining premises”. It can be issued to the owner of the land, or any person “apparently engaged in the work”.

3. In the reasons for giving the order, the Council identified the following works that it considered were not consistent with the development consent: