Chan v City of Canada Bay Council [2020] NSWLEC 1338

Land and Environment Court New South Wales

Medium Neutral Citation: Chan v City of Canada Bay Council [2020] NSWLEC 1338 Hearing dates: Conciliation conference on 5, 19 June 2020; 17 July; Documents filed 24 July 2020 Date of orders: 31 July 2020 Decision date: 31 July 2020 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979, the Court finds that Development Control Order, being Order No. 11, issued by the Respondent on the First and Second Applicants on 21 February 2020 has been sufficiently complied with. Catchwords: DEVELOPMENT CONTROL ORDER – conciliation conference – ameliorative work carried out to reduce noise – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Michael Chan (First Applicant) Kristy Idle (Second Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (Applicants) T Ward (Solicitor) (Respondent)

Solicitors: Wilshire Webb Staunton Beattie (Applicants) Pikes & Verekers Lawyers Sydney (Respondent) File Number(s): 2020/87789 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.18 Environmental Planning and Assessment Act 1979 (EP&A Act) against a Development Control Order (Order), being Order No. 11, issued by the Respondent to the First and Second Applicants on 21 February 2020 in respect of the premises at 26 Bayard Street, Concord (premises). 2. The Order required the Applicant to comply with condition 71 of Development Consent DA 2016/0332 which related to nose emissions, and in particular the noise emitted from an air conditioner. 3. On 5 June 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). At that conference a path to resolution of the matter was agreed. In the event the parties agreed on the scope of work required in order to comply with the Order and condition, and the conciliation was adjourned to enable that work to be carried out and then the outcome tested. 4. After the completion of the work and the testing, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to uphold the appeal and find that the Order has been sufficiently complied with. 5. An agreement pursuant to s 34 of the LEC Act was filed by the parties on 24 July 2020 giving effect to the agreement in principle. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' agreement involves the Court exercising the function under s 8.18(4)(d) of the EP&A Act to find that the Order has been sufficiently complied with. In support of that proposition the Applicant has provided to the Respondent and the Court a report by Stephen Gauld, Acoustic Engineer of Day Design Pty Ltd dated 17 July 2020 demonstrating the agreed work has been carried out and that the acoustic goals required by condition 71 are achieved. The Respondent is satisfied that the Order has been sufficiently complied with based on the report from Mr Gauld. I am also so satisfied. 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 parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 10. The Court orders: 1. The appeal is upheld. 2. Pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979, the Court finds that Development Control Order, being Order No. 11, issued by the Respondent on the First and Second Applicants on 21 February 2020 has been sufficiently complied with. 1. The Court notes the agreement between the parties that there be no order as to costs.