Fan He v Ku-Ring-Gai Council [2022] NSWLEC 1257

Land and Environment Court New South Wales

Medium Neutral Citation: Fan He v Ku-Ring-Gai Council [2022] NSWLEC 1257 Hearing dates: Conciliation conference on 13 April 2022; 27 April 2022 Date of orders: 23 MAY 2022 Decision date: 23 May 2022 Jurisdiction: Class 1 Before: McEwen AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Control Order No. 2 issued to the applicant on 21 December 2021 by the respondent in relation to Lot A in DP 372363, known as 45 Cherry Street, Warrawee is modified by the following Orders: (a) Order 1 is modified to add the words: "other than the works that are specified in Schedule 1 (including the attached plans) to this Order." (b) Add Schedule 1 as follows: "Schedule 1 i. Formwork rectification to level one formwork. Replace/repair woodwork and fixing. ii. Pour Level 1 slab. iii. Install columns to support slab Level 1 shown on the Ground Floor Column Location Plan No. S0101 Rev 1 dated 14 April 2022. iv. Wait 14 days for concrete to cure once slab is poured. v. Remove 50% backprops between ground floor and level 1. vi. Remove all backprops from unauthorised area of basement. vii. Put drainage holes in basement floor prior to fill being imported. viii. Start backfilling. ix. Backfilling to be carried out in accordance with methodology shown on Basement Backfill Plan No. S01 Rev 1 dated 14 April 2022. x. Once backfilling nearing completion in accordance with methodology – install Besser block wall in accordance with detail shown on section 1 on Basement Backfill Plan No. S01 Rev 1 dated 14 April 2022. Blocks are to be held in place with a starter bar and concrete to be filled to a height of 0.6 m / 1.2 m. xi. Install waterproofing and drainage to block wall between back filled area and approved basement area. xii. Finalise construction of Besser block wall to underside of ground floor slab with upper most connection being dry block or similar." (c) Add Order 4 as follows: "The applicant is to: (a) Advise the respondent of the completion of the works set out in Schedule 1, with the exception of (xii), which is to be completed but for the final blocks so that the respondent has the opportunity to inspect the fill behind the Besser block wall; (b) Provide certification from an engineer that the works set out in Schedule 1, with the exception of (xii), have been completed; (c) Provide chain of custody receipts for the VENM deposited in the basement area; (d) Permit the respondent to conduct an inspection within five business days of the Council's Compliance Team being informed of the matters set out in Order 4a – c above. The respondent may write to the applicant to confirm whether in its opinion the matters in Schedule 1 have been satisfied after the conclusion of the inspection." (3) When all the matters in Schedule 1 have been satisfied the Development Control Order is revoked. Catchwords: DEVELOPMENT CONTROL ORDER – stop work order - conciliation conference – agreement between the parties –modification - orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.2, 8.18, Sch 5 Ku-Ring-Gai Local Environmental Plan 2015 Land and Environment Court Act 1979 s 34 Category: Principal judgment Parties: Fan He (Applicant) Ku-Ring-Gai Council (Respondent) Representation: Counsel: M. Sonter (Solicitor) (Applicant) C. Rose (Solicitor) (Respondent)