Nesseim v Ku-ring-gai Council [2024] NSWLEC 1440

Land and Environment Court New South Wales

Medium Neutral Citation: Nesseim v Ku-ring-gai Council [2024] NSWLEC 1440 Hearing dates: Conciliation conference 18 July 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The Respondent's Development Control Order dated 27 April 2023 is substituted in accordance with s.8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A". Catchwords: APPEAL – development control order – demolish works order – conciliation conference – agreement reached to substitute order Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.4, 4.2, 8.18, 9.34, Pt 1 Sch 5 Land and Environment Court Act 1979, s 34 Ku-ring-gai Local Environmental Plan 2015, cl 6.5 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 2.30, 2.74B Category: Principal judgment Parties: Ezzat Daniel Nesseim (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: J Smith (Applicant) C Rose (Solicitor) (Respondent)

Solicitors: Storey & Gough (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2023/165869 Publication restriction: No

Judgment 1. COMMISSIONER: At 16 Bromley Avenue, Pymble, the applicant carried out work following the issue of a complying development certificate on 18 March 2020 for the construction of a dwelling house (the CDC). This work included the construction of a retaining wall, associated paved area and stairs between the western elevation of the dwelling and the fence (the Structures). On 27 April 2023, Ku-ring-gai Council (the Council) issued a modified development control order in the form of a Demolish Works order (the order) requiring the demolition of the Structures. 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 3 of Pt 1 of Sch 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building is "erected in contravention of this Act". The applicants appeal against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which substitute the order with a new development control order in the form of a Compliance Order, are made as a result of an agreement between the parties that was reached at a conciliation conference.