Owners Strata Plan 74232 v Waverley Council [2021] NSWLEC 1275

Owners Strata Plan 74232 v Waverley Council [2021] NSWLEC 1275

Because the parties reached agreement at the conciliation conference and the agreed decision was one the Court could have made in the proper exercise of its functions, it was appropriate under s 34(3) of the Land and Environment Court Act 1979 to uphold the appeal and modify the Fire Safety Order pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
24 May 2021
Procedural Posture
Class 1 Appeal Pursuant to Section 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order – Fire Safety Order / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Final Agreement Filed and Orders Made
Outcome
The appeal is upheld and the Fire Safety Order is modified.
Legal Topics
['development Control Order' 'fire Safety Order' 'combustible External Cladding' 'conciliation Conference' 'modification of Order']
['planning and Environment Law'] ['development Control Order' 'fire Safety Order' 'combustible External Cladding' 'conciliation Conference' 'modification of Order']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to Section 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order – Fire Safety Order / Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979; Final Agreement Filed and Orders Made

Legal Issues

  1. 1 ["Whether the Court should dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether the Fire Safety Order should be modified under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.' 'Whether the modified order could allow the Applicant to take procedural steps to access Project Remediate for remediation of combustible cladding.']

Ratio Decidendi

Because the parties reached agreement at the conciliation conference and the agreed decision was one the Court could have made in the proper exercise of its functions, it was appropriate under s 34(3) of the Land and Environment Court Act 1979 to uphold the appeal and modify the Fire Safety Order pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.

Court Disposition

The appeal is upheld and the Fire Safety Order is modified.

Orders

  • ['The appeal is upheld.' "Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies Fire Safety Order, being an Order No. 1 in Part 2 of Schedule 5, issued by the Respondent to the Applicant on 1 December 2020 in accordance with the modified Fire Safety Order at Annexure 'A'."]