Finemore v Mosman Municipal Council

Representation: Counsel:
A Hemmings (Applicant)
T Wood (Solicitor) (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2025/278732

Publication restriction: Nil

Judgment

1. COMMISSIONER: The Applicants appeal against the Development Control Order No 13.2025.58.1 dated 15 July 2025 (DCO) issued by Mosman Municipal Council (Council) in relation to Lot 2 in Deposited Plan 1103223 known as 14 Burran Avenue Mosman NSW 2088 (Site).

2. The DCO was issued pursuant to s 9.34(1) and Pt 1 of Sch 5, Order No 3 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The DCO required the Applicants to:

“Demolish the new timber stairway constructed without planning approval within the foreshore area on the eastern frontage of the subject premises to 14 Burran Avenue, Mosman.” (Stairway)

3. The period of compliance for the DCO was 28 days from the date the Order was given, or 5 August 2025.

4. On 21 July 2025, the Applicants appealed the DCO pursuant to s 8.18(1) of the EPA Act.

5. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

6. The statutory power or function to be exercised in determining the proceedings is s 8.18(4) of the EPA Act.

7. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 25 November 2025 and 12 December 2025. I presided over the conciliation conference.

8. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, and substituting new orders in the DCO.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18(4)(c) of the EPA Act to uphold the appeal and substitute new orders:

(4) On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

…..

10. Below is a photograph of part of the Stairway, from page 2 of Council’s Statement of Facts and Contentions (SOFAC) filed 14 August 2025.

Figure 1: part of the Stairway

11. Below is an aerial image of the Site from page 3 of Council’s SOFAC (taken from Nearmaps):

Figure 2: aerial image of the Site

12. There are jurisdictional prerequisites that must be satisfied before the function under s 8.18(4)(c) of the EPA Act can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how the jurisdictional prerequisites have been satisfied as set out below:

13. On 23 April 2025 Council received a complaint regarding the construction of the Stairway on the Site that leads from the rear of the dwelling to the foreshore area.

14. On 23 May 2025, the Council wrote to the First Applicant notifying her that Council intended to seek demolition of the Stairway by issuing a demolition order pursuant to the EPA Act.

15. On 17 June 2025 Council issued a Notice of Intention to give a Demolition Order pursuant to Pt 1 of Sch 5, Order No 3 of the EPA Act.

16. On 2 July 2025 Council received representations from the solicitor for the Applicants in relation to the Notice of Intention to give a Demolition Order, the representations having been made pursuant to cl 13 of Sch 5 of the EPA Act.

17. Council considered the Applicants’ representations in accordance with cl 14 of Sch 5 of the EPA Act.

18. On 15 July 2025 Council determined to, and issued the DCO pursuant to s 9.34(1), s 9.35(1)(b) and Sch 5 of the EPA Act following the issue of the Notice of Intention to issue the DCO, and following consideration of the representations received from the Applicants’ solicitor. The Council observed the rules of procedural fairness in accordance with cll 6, 7 and 14 of Sch 5 of the EPA Act.

19. On 21 July 2025, the Applicants filed these Class 1 proceedings in accordance with s 8.18(1) of the EPA Act, and in accordance with the time provisions in s 8.18(3)(a) of the EPA Act.

20. The parties have reached agreement as to a substituted order. The substituted order remains a demolish works order. Order No 3 of Pt 1 of Sch 5 to the EPA Act allows a development control order to be issued as a demolition order in circumstances where a building -

(a) Requiring a planning approval is erected without approval, or (b) Requiring approval under the Local Government Act 1993 (NSW) is erected without approval, or (c) Is or is likely to become a danger to the public, or (d) Is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or (e) Is erected in contravention of the EPA Act.

9. The parties agree that the Stairway was works that would have required planning approval and which was erected without approval, and thus the Stairway was erected in contravention of the EPA Act.
10. The parties are seeking that the Court exercise its jurisdiction to issue a substituted order that the Council as the relevant enforcement authority could have given to the Applicants, pursuant to s 8.18(4)(c) of the EPA Act.
11. The substituted order will be issued to the owners of the Site, being persons identified in Column 3 of Pt 1 of Sch 5 of the EPA Act to whom a demolish works order can be issued.
12. The form of the substituted order aligns with the principles that were supported by Preston CJ in Cai v Fairfield City Council [2022] NSWLEC 58, in the s 56A appeal pursuant to the LEC Act in the matter of Cai v Fairfield City Council [2021] NSWLEC 1657.
13. In summary the substituted DCO requires the Applicants to:

(a) Within 28 days of the date of this order, demolish the parts of the Stairway marked in red outline on the plan being Attachment 4 to Annexure A. (b) “Within 6 months of the date of this order, demolish the remainder of the Stairway.”

13. As set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

14. I note that neither cl 2 nor cl 9 of Sch 5 of the EPA Act applies as the Stairway provides secondary access to the subject dwelling on the Site, and therefore no-one will be rendered homeless by the order. There were no other consent authorities to whom notice was required to be given.

15. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The Court orders:

17. The appeal is upheld.

18. Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 (NSW), Development Control Order No 13.2025.58.1 dated 15 July 2025 in relation to Lot 2 in Deposited Plan 1103223 known as 14 Burran Avenue Mosman NSW 2088, issued by Mosman Municipal Council to the Applicants is substituted with the Order in Annexure A.

M Peatman

Acting Commissioner of the Court

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Annexure A (994 KB, pdf)