Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

1. These proceedings arise following an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a Development Control Order No 11 issued by Randwick City Council (Council) to The Owners of Strata Plan 81812 (applicant) under s 9.34(1)(a) and Sch 5, Pt 1 of the EPA Act and dated 25 September 2024 (Order).

2. The Order was issued because the development was not being carried out in accordance with the approved development consent DA/168/2016/A dated 4 August 2017 and 18 November 2019, namely the installation of a hot water system, air condition units, screening and vents on the roof, at the premises SP 81812, located at 36 Bona Vista Avenue, Maroubra NSW 2335 (Premises).

3. On 25 September 2024, the Order was served upon the applicant in the following terms:

"You are hereby ordered to comply with Council's development consent (DA No. DA/168/2016 and DA/168/2016/A) and carry out the following works and requirements:

1. Remove the unauthorised plant and equipment located on the roof of the subject premises, namely the hot water system, air conditioning units, screening, and vents, so as to comply with the approved development consent plans and conditions of consent."

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 26 June 2025.

5. The parties now propose resolution of proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 15 May 2025 (Agreement). The parties' requirements of the Modified Order are as follows:

"You are hereby ordered to comply with Council's development consent (DA No. DA/168/2016 and DA/168/2016/A) and carry out the following works and requirements:

1. Remove the unauthorised plant and equipment located on the roof of the Premises, namely the hot water storage tank, the four (4) air conditioning units, and the three (3) aluminium screens.

2. Reduce in height the two (2) vertical fireplace flues located on the roof to a height of no higher than 600mm above the roof height.

3. Make the internal fireplaces which are serviced by the two (2) vertical fireplace flues referred to above at order 2 inoperable.

4. Reinstall the hot water system at the location identified in the plan annexed to this Order and marked "A", subject to such work being carried out in accordance with all relevant Australian Standards, installation specifications and noise criteria in the Codes SEPP 2.6(1)(f1).

5. Provide written confirmation and photographic evidence of compliance with orders 1 to 4 to Council."

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions. The decision involves the Court exercising the functions under s 8.18 of the EPA Act to grant consent to modify and/or substitute the Order.

7. Section 8.18(4)(b) and (c) of the EPA Act gives the Court the power to modify and/or substitute the development control order in the manner agreed by the parties. This section provides:

On hearing an appeal, the Court may -

...

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

...

8. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission by the parties.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197aae6876a220d60765d9f0)

Disclaimer: Curated by HT Syndication.