Grimshaw v Ku-ring-gai Council [2023] NSWLEC 1635

Land and Environment Court New South Wales

Medium Neutral Citation: Grimshaw v Ku-ring-gai Council [2023] NSWLEC 1635 Hearing dates: Conciliation Conference on 18 July 2023 Date of orders: 26 October 2023 Decision date: 26 October 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Orders the subject of this appeal are modified in the terms of the modified Development Control Order annexed and marked A. Catchwords: MISCELLANEOUS APPEAL – demolish works order – restore works order – state heritage item – conciliation conference – agreement between the parties – modified order Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.35, Div 9.3, Sch 5 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979, ss 34, 17 Category: Principal judgment Parties: Stuart Ian Grimshaw (First Applicant) Anneliese Rae Grimshaw (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicants) M Staunton (Respondent)

Solicitors: Piper Alderman (Applicants) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2023/10172 Publication restriction: No

Judgment 1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 17(d) of the Land and Environment Act 1979 (LEC Act) from a Development Control Order (DCO) issued by Ku-ring-gai Council (the Council) to the Applicants over land at 29 Telegraph Rd, Pymble, known as Lot 1 DP 1205319 (the Land). 2. Erected on the land in the 1930s is a dwelling house known as "Coppins" and related improvements. The Land, with its improvements, is listed on the NSW State Heritage Register (SHR # 01443) and listed as a heritage item under the Ku-ring-gai Local Environmental Plan 2015. 3. The DCO was issued on 16 December 2022 under Div 9.3 and Sch 5 of the EPA Act being an Order No 3 (Demolish Works Order) and an Order No 10 (Restore Works Order). 4. The DCO was given as a consequence of an inspection being carried out by the Respondent's officers which revealed unauthorised works had taken place within the dwelling and on the Land. These works involved, inter alia, the removal and alteration of a number of original features of the dwelling and external improvements including the removal of front entry doors, removal and replacement of fireplaces and mantles and the dismantling of a windmill. 5. The DCO was given by the Council exercising the powers of an enforcement authority after it heard and considered written representations made by the Applicants in response to receiving a Notice of Intention to give an order pursuant to cl 8 of Sch 5 of the EPA Act. As such, the prescribed procedures pursuant to Pts 4, 5, 6 and 7 of Sch 5 of the EPA Act were complied with to validate the lawful giving of the DCO.