Land and Environment Court of New South Wales CITATION : Warranby Pty Ltd v Strathfield Council [2009] NSWLEC 1167 APPLICANT Warranby Pty Ltd PARTIES : RESPONDENT Strathfield Council FILE NUMBER(S) : 11170 of 2008 CORAM: Taylor C KEY ISSUES: SECTION 121B ORDER :- consent orders LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 DATES OF HEARING: 25 May 2009 DATE OF JUDGMENT: 26 May 2009 APPLICANT Mr D Briggs (Solicitor) SOLICITOR Briggs and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor (Solicitor) SOLICITOR Houston Dearn O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Taylor C 26 May 2009 08/11170 Warranby Pty Ltd v Strathfield Council JUDGMENT 1 Commissioner: This is an appeal against an Order dated 23 October 2008 issued by Strathfield Council pursuant to s 121B of the Environmental Planning and Assessment Act, 1979 in relation to Lot 1/9-13 Beresford Road, Strathfield, Strata Plan 69537. 2 The appeal against the Order is permissible under s 121ZK of the Environmental Planning and Assessment Act, 1979. 3 The Order issued by the Council was for the following reasons: i. The development consent [DA 0001/122] is not being complied with and the dwelling is being used as a boarding house, a purpose which is prohibited under the Strathfield Planning Scheme. ii. The external appearance of the building has been altered without the consent of the authority where consent is required. 4 The Applicant had originally contested the matter in its Class 1 Application to the Court, but in the intervening period the parties had come to agreement on most of the outstanding matters. In particular, it was accepted by the parties that in the absence of a Conservation Management Plan, the Order needed to be revised. The revision was required so that the Order addressed properly the Council's desire that the property in question, a two storey Victorian house, was refurbished as required by condition 102 of the development consent DA 0001/122. 5 Condition 102 of the development consent DA 0001/122 states the following: (a) A Conservation Management Plan (CMP), prepared by a suitably qualified heritage consultant in accordance with the requirements of the NSW Heritage Manual (published by the Heritage Office and the Department of Urban Affairs and Planning), is to be submitted to and accepted by Council prior to the issuing of a Construction Certificate . (b) The CMP is to demonstrate how the heritage significance of both the interior and exterior of the existing building is to be altered and conserved as part of the proposed development and is to include drawings and a schedule of works detailing how this is to be achieved. 6 The parties indicated that the CMP could not be located. 7 The property was no longer being used as a boarding house so item (i) of the order was no longer valid and in respect of item (ii) the parties had agreed to amend the order to reflect the intent of condition 102 of the development consent DA 0001/122. 8 The essence of the required restoration works on the original Victorian house on the lot involved, amongst other works, the removal of the infill windows on both levels of the property on its southern and eastern sides. Exhibit 2, the original plans for the development consent, show clearly the proposed restoration of the verandah on the existing Victorian building. I am satisfied that the proposed revised orders will facilitate these and the other stipulated works. 9 The only matter that the parties could not agree upon was the time period required for the works particularised in the proposed and agreed Consent Orders. The parties asked me to determine this outstanding issue. 10 The Applicant asked for 18 months to complete the works. The Council suggested originally 6 months, which they modified subsequently at the hearing to 12 months. The Applicant provided no evidence of why 18 months was required except that they stated economic considerations meant that a longer time frame was more suitable. In requesting 18 months they provided no schedule of works, costs estimates or a time frame for the different works. 11 Given that the Council had already agreed to meet the Applicant halfway in the proposed timetable for the works (i.e. 12 months), the works are not substantive i.e. they do not involve extensive or intensive structural works, then there is no persuasive reason before me that 12 months is not an unreasonable timeframe for relatively minor building alterations. 12 Therefore, the Court Orders by consent of the parties are as follows: Orders 1 The appeal is upheld in part; 2 The respondent's Section 121B order dated 23 October 2008 directed to the applicant is modified by the deletion of the words under the heading "THE DETAILS OF THE ORDER" commencing with the words "Council orders …." and finishing with "date of service of this order" with the following words/order substituted for those words: "You shall on or before 25 May 2010 undertake the following refurbishment works to the two storey Late Victorian Dwelling erected upon the land consistent with the provisions of Development Consent No. DA 0001/122: a. Remove the infill timber windows installed along the balustrade line at the front and side elevations of the building at the ground and first floor levels (so as to open the original verandah) and make good of the openings as necessary. b. Relocate of the front door from its present position in the wall at the front elevation back to its original position and remove of the surrounding glass and fibrous cement infill panels at the present position. c. Remove of the fire escape stairs constructed within the ground/first floor verandah area to the side elevation and make good the floor penetrations. d. Remove the top floor balcony partition and make good the return walls. e. Provide a sealed car parking area within the front setback. f. Undertake maintenance to the driveway and landscaped garden areas within the front setback. g. Paint the building to the same or similar heritage colour palette. h. Make good any damage that results from compliance with the abovementioned works." 3 There is no order as to costs. 4 The exhibits are returned. ___________________ Dr Mark Patrick Taylor Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.