El Baba v Liverpool City Council [2020] NSWLEC 1568

Land and Environment Court New South Wales

Medium Neutral Citation: El Baba v Liverpool City Council [2020] NSWLEC 1568 Hearing dates: Conciliation conference on 11 November 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979, the Development Control Order in Annexure A is substituted for the Development Control Order given by the Respondent to the Applicant on 11 June 2020. Catchwords: APPEAL – development control order – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: Saleh El Baba (First Applicant) Somaya El Baba (Second Applicant) Liverpool City Council (Respondent) Representation: Counsel: L Nurpuri (Applicants) N Hammond (Respondent)

Solicitors: El Baba Lawyers Pty Ltd (Applicants) Liverpool City Council (Respondent) File Number(s): 2020/195485 Publication restriction: No

Judgment 1. COMMISSIONER: Mr and Mrs El Baba appeal against a development control order issued by Liverpool City Council on 11 June 2020, which required them to demolish a number of outbuildings at 64 St Johns Road, Heckenberg. The order was 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 Pt 1 of Sch 5 to the EPA Act. The order is a demolish works order, issued pursuant to Item 3 of Pt 1 of Sch 5. It was issued because the Council considers that the buildings do not meet the requirements for exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("SEPP ECDC"), and therefore required development consent but were erected without that consent. The outbuildings the subject of the order are a front and rear pergola and two aviaries. The applicants appeal against the order pursuant to s 8.18 of the EPA Act. 2. 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 11 November 2020. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed on 12 November 2020. The agreement is that the order is modified so that the time period for the demolition of the structures is extended to allow the applicants to lodge a building information certificate application, and, if a building information certificate is not granted, to appeal against the refusal of that application. The order is also modified to accommodate an opportunity for the applicants to establish that one or more of the structures meet the requirements of the SEPP ECDC. The modified order is Annexure A to the orders recorded in [6] below. (I note that a reference in Annexure A to a "right of appeal" is not accurate with respect to the order as modified by this appeal, given that the right of appeal described therein relates to the right of appeal against the (original) development control order issued by the Council). 4. As the presiding Commissioner, I am satisfied that the decision to make orders to modify the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order. 5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties. 6. The Court orders that: 1. The appeal is upheld. 2. Pursuant to s 8.18 of the Environmental Planning and Assessment Act, the Development Control Order in Annexure A is substituted for the Development Control Order given by the Respondent to the Applicant on 11 June 2020.