Land and Environment Court New South Wales Medium Neutral Citation: Owners Strata Plan 74232 v Waverley Council [2021] NSWLEC 1275 Hearing dates: Conciliation conference on 6 May 2021, final agreement filed 6 May 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies Fire Safety Order, being an Order No. 1 in Part 2 of Schedule 5, issued by the Respondent to the Applicant on 1 December 2020 in accordance with the modified Fire Safety Order at Annexure 'A'. Catchwords: DEVELOPMENT CONTROL ORDER – fire safety orders – conciliation conference – agreement between the parties – modification of order Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34 Land and Environment Court Act 1979, s 34 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: Owners Strata Plan 74232 (Applicant) Waverley Council (Respondent) Representation: Counsel: S Berveling (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Kreisson Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/364201 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of section 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a Development Control Order – Fire Safety Order (the Order) issued to the Applicant by the Respondent on 1 December 2020 in relation to property at 232-234 Campbell Parade, Bondi Beach (the site). 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 6 May 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. 4. 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. The agreement involves the Court upholding the appeal and modifying the terms of the Order. 5. 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)(b) of the EPA Act to modify the Order. 6. At issue is a portion of the external cladding to an existing residential flat building, which has been assessed as "deemed combustible external cladding". In its current configuration, the cladding presents a risk to the spread of flame and a risk to safe egress from the building in the event of a fire emergency. 7. Pursuant to s 9.34 of the EPA Act, the Respondent issued the original Order to the Applicant on 1 December 2020. 8. Term 1 of the Order required removal of the relevant existing cladding and its replacement with a non-combustible equivalent of similar appearance. 9. At the conciliation conference the parties agreed the Applicant would comply with a modified Order. The proposed modification is in a form that permits the Applicant to access a recently-announced NSW Government program called "Project Remediate". 10. The Court reviewed correspondence dated 1 April 2021 between the NSW Building Commissioner and the Respondent. 11. Project Remediate is described in this correspondence as the "NSW Government's program to provide no-interest loans and an assurance service to oversee the remediation of high-risk combustible cladding on eligible residential buildings". The correspondence confirms the eligibility of the building at 232-234 Campbell Parade, Bondi Beach. 12. Consequently, the parties agreed to modify the terms of the Order to allow for the necessary procedural steps to formally access Project Remediate. 13. Having considered any jurisdictional requirements and forming the necessary view required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies Fire Safety Order, being an Order No. 1 in Part 2 of Schedule 5, issued by the Respondent to the Applicant on 1 December 2020 in accordance with the modified Fire Safety Order at Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (246391, 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: 24 May 2021