Upson v Ku-ring-gai Council [2024] NSWLEC 1283

Upson v Ku-ring-gai Council [2024] NSWLEC 1283

The Development Control Order could be modified because s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 empowered the Court to modify it, the applicant as owner could be issued with the modified restore works order under Item 10 of Pt 1 of Sch 5, the required works would restore the front garden area by ensuring a retaining wall in the same location, function and brick appearance as the previous wall, and the agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
29 May 2024
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Orders Made by Agreement
Outcome
Appeal upheld; Development Control Order modified by agreement.
Legal Topics
['development Control Order' 'restore Works Order' 'conciliation Conference' 'modification of Development Control Order' 'unauthorised Works' 'heritage Conservation Area']
['environmental Planning Law' 'land and Environment Court Proceedings'] ['development Control Order' 'restore Works Order' 'conciliation Conference' 'modification of Development Control Order' 'unauthorised Works' 'heritage Conservation Area']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the Court had power under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 to modify the Development Control Order in accordance with the parties' agreement." "Whether the parties' agreed modification was a decision the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the modified order fell within Item 10 of Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 as a restore works order.']

Ratio Decidendi

The Development Control Order could be modified because s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 empowered the Court to modify it, the applicant as owner could be issued with the modified restore works order under Item 10 of Pt 1 of Sch 5, the required works would restore the front garden area by ensuring a retaining wall in the same location, function and brick appearance as the previous wall, and the agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; Development Control Order modified by agreement.

Orders

  • ['The appeal is upheld.' 'Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order dated 30 October 2023 (EPA0103/23), relating to works at Lot 30 Sec A in Deposited Plan 3277 and Lot B in Deposited Plan 354707 and known as 54 Roseville Avenue, Roseville NSW...