Bocce Pty Ltd v Woollahra Municipal Council

Judgment 1On 9 August 2013 I made orders, by consent, revoking an Order issued by the respondent Council on 15 May 2013 (the Order) under s 121B of the Environmental Planning and Assessment Act 1979 (the Act). These are the reasons for that decision. 2The Order (125/2013) was issued by the Council in terms of item 19 of the Table to s 121B of the Act, and directed the applicant (Bocce) to "cease carrying out works that ar [sic] not in accordance with Development Consent DA706/2010". The period of compliance with the Order was 4 days from the date of the Order. The reasons for the Order were: 1.Development work is being carried out contrary to development consent DA706/2010 in that the set out, boundary setbacks, levels and design of the dwelling under construction are not consistent with the development consent plans and the Construction Certificate. 2. Critical stage inspections required by condition A.36 of development consent DA706/2010 have not been carried out by the Principal Certifying Authority. 3Development consent DA706/2010 approved the demolition of the existing dwelling and construction of a new residential dwelling at 12 Olola Avenue Vaucluse (the site). That consent was granted on 5 August 2011 by the Court, in accordance with an agreement reached by the parties under s 34(3) of the Land and Environment Court Act 1979 in proceedings 10355 of 2011. 4On 2 April 2013 the Council received a copy of a Notice of Intention to give Order dated 27 March 2013 by the Principal Certifying Authority to Bocce, to the effect that the development consent was not being complied with for various reasons. 5On 30 April 2013 Bocce lodged with Council an application pursuant to s 96AA of the Act to modify development consent DA706/2010 (DA706/2012/1). 6On 12 June 2013 Bocce applied to the Council under s 149B of the Act for a building certificate (BC45/13). 7There are three appeals before the Court. Bocce lodged an appeal under s 121ZK(1) of the Act against the Order on 31 May 2013 (proceedings 10369 of 2013). An appeal against the deemed refusal of the application under s 96AA of the Act for modification of development consent DA706/2010 was lodged on 16 July 2013, proceedings 10533 of 2013 (the Modification Appeal). On 16 July 2013 the Council refused the modification application. An appeal against the deemed refusal of a building certificate was lodged on 26 July 2013, proceedings 10571 of 2013 (the Building Certificate Appeal). 8By Motion filed on 16 July 2013 Bocce sought an order that action on the Order be stayed until the later of the determination of the application to modify development consent DA706/2012, or the complete and final determination of any appeal pursuant to s 97AA of the Act in relation to the modification application. 9On 1 August 2013 Biscoe J heard the Motion, which was resolved on the basis that the three Class 1 proceedings (10396 of 2013, 10533 of 2013, 10571 of 2013) were to be brought forward for hearing together on 8 and 9 August 2013; that there be a consent interlocutory injunction including that the Council be restrained from taking action on the stop work order until final determination of the Modification Appeal; and an order that the applicant not carry out any work on the garage structure until further order. Biscoe J made orders for joint expert reports and other procedural directions to bring the proceedings to a final hearing. The orders made by Biscoe J (Bocce Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 124) included the following: (8) Order 1.b. sought by the applicant's Motion filed 16 July 2013 in proceedings No. 10396 of 2013 is made, namely: An order that the Respondent take no action on the Respondent's Order No. 125/2013 to "Cease carrying out works that ar [sic] not in accordance with Development Consent DA706/2010" dated 15 May 2013 ("the Order"), given to the Applicant, until the complete and final determination of any appeal to the Court pursuant to s97AA Environmental Planning and Assessment Act 1979 with respect to the Applicant's modification application. Order 2 of the notice of motion is stood over to the hearing referred to in Order 1 above. (9)The applicant will not carry out work on the garage structure until further order. NOTE: In making Order 8 by consent, the Court notes the following assurance given on behalf of the applicant: In any Class 4 proceedings commenced by Council arising from a determination of proceedings 10533 of 2013 and 10571 of 2013 which is adverse to the applicant, the applicant will not, for the purposes of the exercise of the Court's discretion under section 124 of the Environmental Planning and Assessment Act 1979, rely upon work done on and from 1 August 2013 in contravention of the respondent Council's Order to cease carrying out works given on 15 May 2013. 10The hearing of the three appeals commenced on site on 8 August 2013 with a view. When the hearing resumed in Court on 8 August 2013 the parties handed up Consent Orders in these proceedings. The hearing of the Modification Appeal proceeded, with evidence concluding on 9 August 2013. The Modification Appeal is adjourned for the hearing of submissions on 14 August 2013. In the Building Certificate Appeal, a joint report prepared by Mr Rade Radovancevic, structural engineer on behalf of Bocce, and Mr Craig Jenner, Team Leader Compliance of the Council, has been tendered (exhibit 6); the parties agree that disposition of that appeal will depend on the outcome of the Modification Appeal.