The Owners - Strata Plan No 7933 v Waverley Council [2022] NSWLEC 1568

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners - Strata Plan No 7933 v Waverley Council [2022] NSWLEC 1568 Hearing dates: Conciliation conference 17 October 2022 Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Developmental Control Order NO-4950 issued by the Respondent to the Applicant on 9 February 2022 is modified in accordance with Annexure A. Catchwords: APPEAL – development control order – demolition of a building – conciliation conference – parties agree to modified development control order Legislation Cited: Environmental Planning and Assessment Act 1979, Div 9.3, ss 1.4, 8.18, 9.34, Pt 1 Sch 5 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: The Owners - Strata Plan No 7933 (Applicant) Waverley Council (Respondent) Representation: Counsel: C Koikas (Applicant) J Ede (Solicitor) (Respondent)

Solicitors: Strata Specialist Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2022/66665 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant appeals against a development control order that was issued by Waverley Council on 9 February 2022, which requires it to demolish a detached building at 15 Penkivil Street, Bondi. 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 applicant appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the development control order, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The order is issued pursuant to Division 9.3 of the EPA Act and Part 1 of Schedule 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Part 1 of Schedule 5. Item 3 of Part 1 of Schedule 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building "requiring a planning approval is erected without approval". It is not disputed by the applicant that the building the subject of the order required planning approval, and it was erected without approval. In addition, part of the building encroaches on the neighbouring property. 3. 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 today, 17 October 2022. I presided over the conciliation conference. 4. At 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 the same date. The agreement is that the order is modified to require the demolition of that part of the building that encroaches on the adjoining land, and to require some works to be carried out to make good what remains of the building following demolition.