Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013

Land and Environment Court New South Wales

Medium Neutral Citation: Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013 Hearing dates: 12 December 2019 Date of orders: 21 February 2020 Decision date: 10 January 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The Respondent's Development Control Order dated 11 March 2019 is substituted in accordance with s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A" ("The Substituted Order"). (3) The Applicant shall forward to the Respondent by 14 April 2020 a certificate from a CPEng accredited engineer or appropriately accredited building certifier or building surveyor, certifying that the works referred to in paragraphs 1(a) and (b) of the Substituted Order have been carried out in accordance with the approved design and complies with relevant Australian Standards and Code. Catchwords: APPEAL – development control order – demolish works order – stairway constructed on public reserve – statutory requirements for the issue of the order met – discretion as to whether order should remain or be revoked in circumstances where the Council's own actions and plan of management supported the construction of the stairs – discretion exercised to vary the order to allow them to remain with work to be carried out Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Kiama Local Environmental Plan 2011 Land and Environment Court Act 1979 Local Government Act 1993 Cases Cited: Barnes v Dungog Shire Council (1999) 103 LGERA 269; [1999] NSWLEC 146 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259 Lederer v Sydney City Council (2001) 119 LGERA 350; [2001] NSWLEC 272 McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 Stutchbury v Pittwater Council (1999) 105 LGERA 1; [1999] NSWLEC 177 Van Haasteren v South Sydney Council (2000) 109 LGERA 252; [2000] NSWLEC 168 Texts Cited: Building Code of Australia Jones Beach and Cathedral Rocks Reserve Plan of Management Category: Principal judgment Parties: Maroun Holdings Pty Ltd (Applicant) Kiama Municipal Council (Respondent) Representation: Counsel: S Berveling (Applicant) M Winram (Solicitor) (Respondent)