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

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: "(a) An unauthorised opening in the western elevation of the master bedroom on the first floor level. (b) An unauthorised balcony appears to be under construction off the western elevation of the first floor level. (c) Retaining wall constructed off the northern elevation of the ground floor level terrace area is higher and closer to the northern elevation external wall than as depicted in the approved construction certificate. (d) An unauthorised opening has been constructed in the external wall of the eastern elevation ground floor. (e) An unauthorised balcony appears to be under construction off the eastern elevation of the lower ground floor. (e) Unauthorised stairs constructed between the lower ground floor level to the lower terrace bar/pool area. (f) Unauthorised geotechnical support piles are being constructed within the southern setback. No detail of this work has been provided to Council with the Construction Certificate."