Screnci & Anor v Willoughby City Council (No 2) [2016] NSWLEC 1182

Land and Environment Court New South Wales

Medium Neutral Citation: Screnci & Anor v Willoughby City Council (No 2) [2016] NSWLEC 1182 Hearing dates: 9, 10 October, 20 November 2014; 11 February, 2, 12 March 2015; 2, 31 March 2015; written submissions 3, 6, 16 May 2016 Date of orders: 19 May 2016 Decision date: 19 May 2016 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [25] Catchwords: APPEAL: Section 121B Order – Unauthorised works – Modification of Order APPEAL: Building certificate – Secondary dwelling – Retaining walls – Landscaping and other works DEVELOPMENT APPLICATION: Secondary dwelling – Landscaping and other works Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Screnci & Anor v Willoughby City Council [2015] NSWLEC 1256 Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137 Category: Principal judgment Parties: Joseph Screnci and Paula Screnci (Applicants) Willoughby City Council (Respondent) Representation: Counsel: Mr J Johnson (Respondent)

Solicitors: Mr C Shaw, Swaab Attorneys (Applicants) Ms K Arthur, King & Wood Mallesons (Respondent) File Number(s): 10972 of 201310527 of 201410579 of 201410803 of 201410804 of 2014 Publication restriction: No

Judgment 1. On 6 April 2016 I delivered judgment (Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137) in the appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 (the Act) by Mr and Mrs Screnci against an Order issued by the respondent Council on 15 November 2013 under s 121B of the Act which directed the applicants to undertake specified works at their property at 57 Minimbah Road Northbridge (the Order appeal), giving my conclusions as to the modifications required to that Order. That decision also addressed the applicants' appeal pursuant to s 97 of the Act against refusal of a development application for a secondary dwelling (proceedings 10803 of 2014), and I concluded that development consent should be refused and the appeal dismissed. In that judgment I expressed the view that as a consequence of the conclusions reached in the Order appeal and in relation to the appeal against refusal of development consent for the secondary dwelling, there appeared to be little utility in proceeding further with the applications in the three remaining related matters, being the appeal pursuant to s 97 of the Act against refusal of a development application for landscaping and other works including stairs and retaining walls (10579 of 2014); the appeal pursuant to s 149F of the Act against refusal of a building certificate for the landscaping and other works already undertaken on the site (10527 of 2014); and the appeal pursuant to s 149F of the Act against refusal of a building certificate for alterations and additions to the dwelling for the purposes of the secondary dwelling (10804 of 2014), and that it would be appropriate to dismiss those appeals. 2. As noted at paragraph [3] of that judgment, the background of the applications and the appeals was the subject of an earlier judgment, Screnci & Anor v Willoughby City Council [2015] NSWLEC 1256. These reasons should be read together with the two earlier judgments. 3. As foreshadowed in Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137, the parties were given an opportunity to indicate whether there was an alternative course preferable to the dismissal of the appeals in 10579 of 2014, 10527 of 2014, and 10804 of 2014. The parties agreed that that was the appropriate outcome. 4. In the Order appeal, pursuant to directions made on 6 April 2016 and 12 April 2016, on 22 April 2016 the parties provided to the Court the Council's proposed modified Order, being a Schedule of Works and associated plans, and the applicants' response to the proposed modified Order. The parties had been unable to reach agreement about the form of the Order. 5. The applicants took issue with a number of aspects of the Council's proposed Schedule of Works and annexed plans. On 27 April 2016 I communicated my response to the applicants' objections, requesting advice as to whether the parties wished to have the matter relisted to discuss matters further. In response to that communication, the applicants advised that they could address the matters of concern in relation to demolition and consequent construction works and the resultant impact on site suitability in a written submission; the Council agreed to deal with the matter by written submissions. The applicants provided written submissions on 3 May 2016; and the Council responded with written submissions on 6 May 2016. Following receipt of those submissions, on 13 May 2016 I advised the parties that the terms of the modified Order could be finalised without requiring a further listing, subject to clarifying the parties' respective positions on the timber walkway proposed between the western and eastern terraces. On 16 May 2016 the parties advised their positions on that issue. 6. On consideration of the parties' submissions, and on further consideration of the expert evidence given during the hearing, I have determined to amend the Schedule of Works as detailed below, and to make no changes to the Council's plans, drawings 001C, 002C and 003C, which are annexures to the amended Schedule of Works. My reasons are as follows.