Umansky v Sutherland Shire Council [2019] NSWLEC 1569

Umansky v Sutherland Shire Council [2019] NSWLEC 1569

The agreed modified order was one the Court could lawfully make under s 8.18(4) of the Environmental Planning and Assessment Act 1979, and under s 34(3) of the Land and Environment Court Act 1979 the Court was required to dispose of the proceedings in accordance with the parties' agreement because it was a decision the Court could have made in the proper exercise of its functions. Compensation was not warranted because there was no evidence that the Council's Order was unsubstantiated or unreasonable, and the installed door was contrary to the building approval and non-compliant with NCC BCA 2019 Volume 2 fire separation requirements.

Jurisdiction
Australia
Judgment Date
21 November 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order / Conciliation Conference; Agreed Orders Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Development Control Order modified by consent; compensation refused; proceedings disposed of in accordance with the parties' agreement.
Legal Topics
['development Control Order' 'enclosure of Carport' 'stormwater Drainage' 'fire Separation' 'conciliation Agreement' 'compensation Concerning Orders']
['planning and Environment' 'building and Development Control' 'local Government'] ['development Control Order' 'enclosure of Carport' 'stormwater Drainage' 'fire Separation' 'conciliation Agreement' 'compensation Concerning Orders']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order / Conciliation Conference; Agreed Orders Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Development Control Order issued by Sutherland Shire Council should be revoked, modified or otherwise dealt with under s 8.18(4) of the Environmental Planning and Assessment Act 1979.' 'Whether agreed modification of the Order could lawfully be made by the Court following the conciliation conference.' 'Whether compensation should be awarded to the applicant under s 81 of the Local Government Act 1993.' 'Whether works to the carport and rear paved area would address compliance with the National Construction Code – Building Code of Australia and stormwater concerns.']

Ratio Decidendi

The agreed modified order was one the Court could lawfully make under s 8.18(4) of the Environmental Planning and Assessment Act 1979, and under s 34(3) of the Land and Environment Court Act 1979 the Court was required to dispose of the proceedings in accordance with the parties' agreement because it was a decision the Court could have made in the proper exercise of its functions. Compensation was not warranted because there was no evidence that the Council's Order was unsubstantiated or unreasonable, and the installed door was contrary to the building approval and non-compliant with NCC BCA 2019 Volume 2 fire separation requirements.

Court Disposition

Development Control Order modified by consent; compensation refused; proceedings disposed of in accordance with the parties' agreement.

Orders

  • ['Within 120 days from the date of these Court Orders, the Applicant is to remove the garage roller door and associated wooden frame installed on the carport at the subject premises and construct a 1.8m high metal fence and gate not closer than 500mm from rear of the carport structure, extending from the western...