Land and Environment Court New South Wales Medium Neutral Citation: Jacqueline Fritsch v Maitland City Council [2017] NSWLEC 1259 Hearing dates: Conciliation Conference 16 May 2017 Date of orders: 26 May 2017 Decision date: 26 May 2017 Jurisdiction: Class 1 Before: Martin SC Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION; Appeal against orders pursuant to s.121B (1) (Orders 2 & 12) of the Environmental Planning and Assessment Act; Deemed refusal of building certificate. Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Jacqueline Fritsch (Applicant) Maitland City Council (Respondent) Representation: Long Legal (Applicant) Moray & Agnew (Respondent) File Number(s): 16/350489, 16/350485, 17/14900, 17/14896 Publication restriction: No Judgment 1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 2. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are set out below: FENCING 1. Within 3 months from the date of the orders being made, the applicant shall carry out the following works: 1. the concrete blockwork at the entrance to the site shall be core filled, capped and modified so that: No part will be higher than 1.8m above the footings / slab including capping; The wall shall be reduced in height as per the plan signed by the parties representatives on 16 May 2017 and marked "A", essentially by removal of one to two courses of blockwork, with the end pillars of the reduced portion capped in the same manner as the other pillars; The structure will be rendered in TCM brand "Dynasty" or "Choc Malt" render, or such other colour as the Council shall agree in writing; Topsoil shall be placed to the ground within the road reserve up until not less than the level of the footings/slab in accordance with an approval under s.138 of the Roads Act obtained prior to placing the fill; 1. The existing cyclone fence shall be removed and be replaced by a 1.5m high timber post and horizontal wire fence, and may include mesh infill placed on the landowner's side of the wooden post and wires, and may include reuse of the existing black mesh to the height of the top wire. FILL AND EARTHWORKS (2) Within one month from the date of agreement the applicant will either remove all fill material introduced onto the property or undertake the following in the alternative: 1. Fill material shall not obstruct any local watercourse, flow path or drain, that is within or that enters the site, without provision for conveyance, within the site, of stormwater flows through or around the proposed fill area, including adequate protection against erosion. 2. Within 1 month of the date of agreement the applicant shall submit to the Council a Stage 2 Detailed Site Investigation Report prepared in accordance with OEH Guidelines for Consultants Reporting on Contaminated Sites (2000) in respect of the fill material that is to be left on the property. The report is to certify the fill is suitable for the site use by sampling and analysis of the imported fill which certifies that the material is not contaminated based on the known past history of the site where the material is obtained. FENCING ORDERS PROCEEDINGS and BUILDING CERTIFICATE (3) Within 14 days of the work referred to under the heading "fencing" hereof being completed to the satisfaction of the Council, the Council will issue the Building Certificate the subject of proceedings 2016/00350489. (4) The applicant will as soon as practical thereafter discontinue proceedings 2016/00350485 (Order - Fill) and proceedings 2017/00014900 (Order - Fencing) on the basis that each party will pay their own costs. BUILDING WORKS (5) Unless otherwise approved by Council in writing, all general building work shall be carried out between the hours of: 1. 7.00am to 6.00pm Monday to Friday 2. 7.00am to 5.00pm Saturday (6) Any work performed on Sunday's or Public Holidays that may cause offensive noise, as defined under the Protection of the Environment Operations Act, is prohibited. Minor works (such as hand sanding, painting, digging and the like) is permitted between the hours of 9.00am to 5.00pm. Power operated tools are not permitted to be used. (7) Rubbish generated from the development is to be suitably contained on site at all times. No rubbish shall be stockpiled in a manner which facilitates the rubbish to be blown / moved off site. (8) All building materials, plant and equipment shall be contained wholly within the development site. (9) The site shall be cleared of all building refuse and spoil immediately upon completion of the works. (10) Suitable and adequate measures are to be applied to restrict public access to the site and building works, materials and equipment. DEMOLITION (11) All demolition works are to be carried out in accordance with Australian Standard AS 2601-2001. RESOLUTION OF PROCEEDINGS 1. RESOLUTION OF PROCEEDINGS 2017/00014896 (Refusal of DA) The applicant discontinues proceedings 2017/00014896. Each party agrees to be responsible for her, or its, own costs. 1. RESOLUTION OF PROCEEDINGS 2017/00014900, 2016/00350485 and 2016/00350489 Pursuant to Section 34(3)(a) and (b), the parties request the Commissioner to dispose of these proceedings in accordance with the terms of the above agreement with each party being responsible for her or its own costs. ………………….. Rosemary Martin Senior Commissioner 14896.17 Martin Annex A (520 KB, pdf) Amendments 08 June 2017 - 'Conciliation Conference' entered 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. Decision last updated: 08 June 2017