Harris v Waverley Council; Seigal v Waverley Council [2020] NSWLEC 1565

Harris v Waverley Council; Seigal v Waverley Council [2020] NSWLEC 1565

The Court was satisfied that the Site was being used for a purpose for which planning approval was required but had not been obtained in relation to the unauthorised building work, and that the parties' agreed substitution of Order 3 with Order 1 was a decision the Court could have made in the proper exercise of its functions; therefore s 34(3) required the Court to dispose of the proceedings in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
17 November 2020
Procedural Posture
Class 1 Miscellaneous Appeals Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against Development Control Orders / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement as to Orders
Outcome
Appeals upheld; Respondent's Development Control Order dated 20 September 2019 substituted in both proceedings.
Legal Topics
['development Control Order' 'stop Use Order' 'unauthorised Building Work' 'conciliation Conference' 'substitution of Order']
['planning and Environment Law'] ['development Control Order' 'stop Use Order' 'unauthorised Building Work' 'conciliation Conference' 'substitution of Order']

Case Brief

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Procedural Posture

Class 1 Miscellaneous Appeals Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against Development Control Orders / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Parties Reached Agreement as to Orders

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." "Whether the Respondent's Order 3 could be substituted with an agreed Order 1 under s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979." 'Whether the jurisdictional prerequisites for an Order 1 under Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 were satisfied.']

Ratio Decidendi

The Court was satisfied that the Site was being used for a purpose for which planning approval was required but had not been obtained in relation to the unauthorised building work, and that the parties' agreed substitution of Order 3 with Order 1 was a decision the Court could have made in the proper exercise of its functions; therefore s 34(3) required the Court to dispose of the proceedings in accordance with the parties' decision.

Court Disposition

Appeals upheld; Respondent's Development Control Order dated 20 September 2019 substituted in both proceedings.

Orders

  • ['Proceedings 2019/323335: The appeal is upheld.' 'Proceedings 2019/323335: The Respondent\'s Development Control Order dated 20 September 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".' 'Proceedings...