Ashcroft v Northern Beaches Council [2023] NSWLEC 1284

Land and Environment Court New South Wales

Medium Neutral Citation: Ashcroft v Northern Beaches Council [2023] NSWLEC 1284 Hearing dates: Conciliation conference on 2 June 2023 Date of orders: 08 June 2023 Decision date: 08 June 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Pursuant to section 8.18(4)(c) and section 8.18(4)(f) of the Environmental Planning and Assessment Act 1979, the Order issued by the Respondent to the Applicant dated 20 September 2022 is substituted with the Order set out in Annexure A. Catchwords: DEVELOPMENT CONTROL ORDER APPEAL – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, Pt 1, Sch 5, Div 9.3, ss 8.18, 9.34 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Matthew Ashcroft (First Applicant) Jade Ashcroft (Second Applicant) Carla Pavincich (Third Applicant) Glenn Cooper (Fourth Applicant) Northern Beaches Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) A Gough (Solicitor) (Respondent)

Solicitors: Boskovitz Lawyers (Applicant) Storey & Gough (Respondent) File Number(s): 2022/309444 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order dated 20 September 2022, reference number EPA2022/0111, being Order 1, Order 3 and Order 10 under s 9.34 and Pt 1 of Sch 5 of the EPA Act (the Order), applying to 20 Kevin Avenue, Avalon Beach (the site), by Northern Beaches Council (the Council). The Order was served upon the owners of the site and concerned unauthorised works to convert a single dwelling to a dual occupancy without development consent. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 June 2023. I presided over the conciliation conference. 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. 3. 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)(c) of the EPA Act to substitute for the Order any other order that the relevant enforcement authority who gave the order could have given. 4. The Order at Annexure A is made pursuant to Div 9.3, Sch 5 (Order Numbers 1, 3 and 10) of the EPA Act. The substituted Order is prepared in the same form but with amended orders reflecting the agreed position of the parties, as follows: * The same restoration of the use of the property to a single residential dwelling. * The demolition of the illegal works in a form acceptable to the parties. * The construction of an internal stair and the provision of a wet bar on the upper level. 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 30 May 2023 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.