Land and Environment Court New South Wales Medium Neutral Citation: Akbari v Wollongong City Council [2022] NSWLEC 1483 Hearing dates: Conciliation conference 2 June 2022, 6 July 2022 and 20 July 2022 Date of orders: 13 September 2022 Decision date: 13 September 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Control Order NO-2021/270 issued by the Respondent to the Applicant and dated 21 October 2021 is substituted instead with the following Development Control order: a) The Applicant carry out, or cause to be carried out, the installation of the inlet pit as shown on the "Engineering Standard Drawing Letterbox and Grated Inlet Pit for Pipes up to 750mm Drawing No. 7000 Sheets C04 and C05 Issue A annexed to these orders and marked "A", in the location of the now filled culvert within the Council road reserve adjacent to 2 Goodrich Street Scarborough, such that the intlet pit connects to the culvert and conveys water, wand with such works to be completed within 6 months from the date of this order. b) The Applicant install, or cause to be installed, a stormwater drainage system consisting of a driveway strip drain that extends across the width of the driveway within the boundaries of 2 Goodrich Street Scarborough and disposes of that stormwater via a minimum 90mm PVC stormwater pipe into the inlet pit described at paragraph (a) above, with such works to be completed within 6 months from the date of this order. Catchwords: APPEAL - DEVELOPMENT CONTROL ORDER – restore works order – conciliation conference – agreement between the parties – parties agree to modified order – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Pt 1 Sch 5 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Kaveh Akbari (Applicant) Wollongong City Council (Respondent) Representation: Counsel: K Akbari (Applicant) (Self-represented) J Reilly (Solicitor) (Respondent) Solicitors: Kaveh Akbari (Applicant)(Self-represented) Wollongong City Council (Respondent) File Number(s): 21/328697 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development control order issued by Wollongong City Council on 21 October 2021. The development control order is a Restore Works Order, which requires the applicant to reconstruct a stormwater culvert system on the public road reserve at Goodrich Street, Scarborough, to the state it was in prior to work being carried out to fill the culvert. 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. Item 10 in the table allows a development control order to be issued as a Restore Works Order to the person responsible for unlawfully depositing material in a public place, requiring the recipient of the order to restore premises to the condition in which they were before the works occurred. The applicant appeals against the order pursuant to s 8.18 of the EPA Act. 2. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, as follows: (4) On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 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 2 June 2022 and continued on 6 July 2022 and 20 July 2022. I presided over the conciliation conference. 2. 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 29 August 2022. The decision agreed upon is for the order to be substituted with an order that the Council could have given, consistent with the power of the Court in s 8.18(4)(c) of the EPA Act. The substitute order will require works to instal an inlet pit in the location where the culvert was filled in and a stormwater drain on the driveway. This will restore the area of the public road reserve to a condition that can collect stormwater in an improved manner to the culvert that was filled in, and will allow stormwater drainage from the driveway. 3. As the presiding Commissioner, I am satisfied that the decision to make orders to substitute 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)(c) of the EPA Act gives the Court the power, on the hearing of the appeal, to substitute the development control order. Although the substitute order goes beyond restoring the premises "to the condition in which they were before unlawful… works occurred", as it upgrades the culvert so as to instal an inlet pit that will integrate with the Council's stormwater drainage system, I am satisfied that it is nonetheless within the broad power of the Court reflected in s 8.18(4)(f). 4. 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. 5. The Court orders that: 1. The appeal is upheld. 2. Development Control Order NO-2021/270 issued by the Respondent to the Applicant and dated 21 October 2021 is substituted instead with the following Development Control order: 1. The Applicant carry out, or cause to be carried out, the installation of the inlet pit as shown on the "Engineering Standard Drawing Letterbox and Grated Inlet Pit for Pipes up to 750mm Drawing No. 7000 Sheets C04 and C05 Issue A annexed to these orders and marked "A", in the location of the now filled culvert within the Council road reserve adjacent to 2 Goodrich Street Scarborough, such that the intlet pit connects to the culvert and conveys water, wand with such works to be completed within 6 months from the date of this order. 2. The Applicant install, or cause to be installed, a stormwater drainage system consisting of a driveway strip drain that extends across the width of the driveway within the boundaries of 2 Goodrich Street Scarborough and disposes of that stormwater via a minimum 90mm PVC stormwater pipe into the inlet pit described at paragraph (a) above, with such works to be completed within 6 months from the date of this order. ………………………. J Gray Commissioner of the Court Annexure A (480120, 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: 13 September 2022