The Owners – Strata Plan No 78825 v Northern Beaches Council [2024] NSWLEC 1683

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 78825 v Northern Beaches Council [2024] NSWLEC 1683 Hearing dates: 24 October 2024 Date of orders: 24 October 2024 Decision date: 24 October 2024 Jurisdiction: Class 2 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 180(4)(c) of the Local Government Act 1993 (LG Act), the order issued under s 124 of the LG Act by the respondent to the applicant on 5 September 2023 be substituted with the order annexed to these orders and marked A. (3) The Class 2 Application is otherwise dismissed. Catchwords: APPEAL – order under the Local Government Act – landslide risk – parties agree on revised order – order substituted with revised order Legislation Cited: Land and Environment Court Act 1979, s 39 Local Government Act 1993, ss 124, 180 Category: Principal judgment Parties: The Owners – Strata Plan No 78825 (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Reid (Applicant) D Robertson (Respondent)

Solicitors: Bannermans Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/313247 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant is the owner of SP78825, which is located at 118B Parkes Road Collaroy Plateau (118B) and comprises 8 townhouses. To the south of 118B, and adjoining that land, is land owned by Northern Beaches Council (the Council) which is Lot 52, Parkes Road Reserve 1 (Lot 52). Lot 52 slopes steeply away from 118B, and landslips have occurred affecting both lots. The most recent landslip, in March 2022, resulted in the movement in the fill below a number of the townhouses, exposing the concrete slab and stormwater pipes. On 5 September 2023, the Council issued an order to the applicant to carry out works to make the land safe (the Order), pursuant to s 124 of the Local Government Act 1993 (LG Act). The applicant appeals to the Court against the Order, pursuant to s 180 of the LG Act. 2. Section 124(1) of the LG Act provides that: A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. 1. The order relies on Item 21 in the Table in s 124, which provides the following: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 21 To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition The land or premises are not in a safe or healthy condition Owner or occupier of land or premises