Land and Environment Court New South Wales Medium Neutral Citation: Harris v Waverley Council; Seigal v Waverley Council [2020] NSWLEC 1565 Hearing dates: Conciliation conference on 6 November 2020 Date of orders: 17 November 2020 Decision date: 17 November 2020 Jurisdiction: Class 1 Before: Espinosa C Decision: Proceedings 2019/323335 The Court orders: (1) The appeal is upheld. (2) The Respondent's Development Control Order dated 20 September 2019 is substituted in accordance with s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A". Proceedings 2019/323338 The Court orders: (1) The appeal is upheld. (2) The Respondent's Development Control Order dated 20 September 2019 is substituted in accordance with s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A". Catchwords: APPEAL – development control order – appeals heard together – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Proceedings 2019/323335 Andrew Timothy Harris (Applicant) Waverley Council (Respondent) Proceedings 2019/323338 Amber Teresa Seigal (Applicant) Waverley Council (Respondent) Representation: Proceedings 2019/323335 Counsel: S Berveling SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Wilshire Webb Stanton Beattie (Respondent) Proceedings 2019/323338 Counsel: S Berveling SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Wilshire Webb Stanton Beattie (Respondent) File Number(s): 2019/323335; 2019/323338 Publication restriction: No Judgment 1. COMMISSIONER: These are related Class 1 Miscellaneous Appeals pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being Appeals against a development control order issued pursuant to s 9.34 and Sch 5, Pt 1 of the EPA Act by Waverley Council on 20 September 2019 to each of the two registered owners of the property at 30 Dellview Street, Tamarama NSW 2026 (the Site) Andrew Timothy Harris and Amber Teresa Seigal, being an Order 3 to remove the Unauthorised Building Work defined as the following: 1. Steel Firebox (solid fuel heater) at first floor living area; and 2. External Chimney extension located on the roof, at the front of the premises. 1. 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 6 November 2020. I presided over the conciliation conference. 2. 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 substituting the Respondent's Order 3 with an Order 1 in the terms set out in Annexure A. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision 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)(c) of the EPA Act to (4) On hearing an appeal, the Court may— … (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given … 1. 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 to be as set out in Pt 1 of Sch 5 of the EPA Act as it applies to the circumstances when an Order 1 can be issued as set out below: Schedule 5 Development control orders Part 1 General orders Column 1 Column 2 Column 3 To do what? When? To whom? Stop Use Order Premises are being used— To stop using premises or a building … • The owner of premises or building Not to conduct or to stop conducting an activity on the premises • for a purpose for which a planning approval is required but has not been obtained, • The person using the premises or building … 1. The parties agree that the Unauthorised Building Work installed by the Applicants at the Site required planning approval and have included in the agreed Order 1 a requirement for the Applicants to obtain a building information certificate prior to being able to use the Unauthorised Building Work. 2. I accept and am satisfied that the Site was being used for a purpose for which a planning approval is required but has not been obtained in relation to the use of the Unauthorised Building Work. 3. The parties agree that it is appropriate for the Court to substitute the Order 3 issued by the Respondent, the subject of these appeals, with the agreed terms of the Order 1 and they referred me to the Individual Statement of Evidence of Michael Assal (Assal Statement of Evidence) filed 4 November 2020, in particular to the recommendations in section 6 at page 5. I note that these recommendations are incorporated into the agreed Order 1. 4. I have reviewed the Assal Statement of Evidence and have taken into account Mr Assal's expertise as an air quality and odour specialist and accept that it is appropriate to substitute the Order 3 with the agreed Order 1. 5. For the reasons set out above in this judgment, 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. 6. 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. Proceedings 2019/323335 1. The Court orders: 1. The appeal is upheld. 2. The Respondent's Development Control Order dated 20 September 2019 is substituted in accordance with s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A". Proceedings 2019/323338 1. The Court orders: 1. The appeal is upheld. 2. The Respondent's Development Control Order dated 20 September 2019 is substituted in accordance with s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A". ………………………. E Espinosa Commissioner of the Court Annexure A (96336, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2020