Sarian v The Hills Shire Council

Contentions

1. There are 3 contentions between the parties: 1. Whether the Occupation Certificate prevented the Council from requiring the works to be done, as set out in the DCO. 2. Whether the Court has power to make an Order in relation to the DCO on the grounds that there has not been a non-compliance with the planning approval. 3. Whether the impact on the amenity of the residents of the Golf Shore - Sarian Retirement Village, particularly the 6 Units, is a relevant consideration in granting the Order.

Legislation

1. The Council has power to issue development control orders pursuant to s 9.34 of the EPA Act: (1) The development control orders that may be given under this Act are as follows - (a) general orders in accordance with the table to Part 1 of Schedule 5…
2. The orders that the Council says that it could have given under s. 9.34 and Schedule 5 of the EPA Act include relevantly: Column 1 Column 2 Column 3 To do what? When? To whom?
3. Compliance Order A planning approval has not been complied with. • The owner of the premises To comply with a planning approval for the carrying out of works • Any person entitled to act on a planning approval, or acting in contravention of a planning approval Complete
4. Works Order The authorised works have commenced, but have not been completed, before the planning approval would (but for the commencement of the works) have lapsed. • The owner of the relevant land To complete authorised works under a planning approval within a specified time

1. The Applicants appealed the DCO pursuant to s 8.18 of the EPA Act. Section 8.18 provides, relevantly: (1) A person who is given a development control order may appeal to the Court against the order. … (2) The appeal may be made only - (a) Within 28 days after the development control order is given to the person, or …. (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 (d) Find that the development control order is sufficiently complied with, or (e) Make such order with respect to compliance with the development control order as the Court thinks fit, or (f) Make such other order with respect to the development control order as the Court thinks fit.
2. In accordance with s 17(d) of the Land and Environment Court Act 1979 (LEC Act) the Court has jurisdiction under Class 1 to hear appeals in relation to a development control order made pursuant to s 8.18 of the EPA Act.
3. In addition the provisions of s 39 of the LEC Act apply: Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body - (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) (Repealed) (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. (8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

The evidence

1. Neither of the Applicants gave evidence in this matter.
2. Council's Amended Statement of Facts and Contentions (SOFAC), Ex 1, set out at: "[35] Stage 1 required some internal works along the frontage to be excluded to retain a temporary open channel/swale along the frontage of the site which conveyed stormwater runoff along Fairway Drive from a large dame located within the golf course to the east of the site. The temporary works were required until runoff from the dam could be redirected north under Fairway Drive and into Strangers Creek. Works to redirect runoff from the dam were completed in January 2018 as part of the redevelopment of 16-18 Fairway drive, Norwest of the site." [36] Stage 2 and 3 Works have not yet commenced. … [45] On 13 May 2020, the Respondent issued correspondence to the Applicants in relation to work to be completed under Stage 1 of the Development Consent 1158/2009/HC (as modified). The letter advised the Applicant of complaints received from residents in relation to the incomplete landscaping and fencing works across the front of the stage 1 area between the driveway access and eastern site boundary. The Applicant was requested to attend to this work by 3 June 2020." [46] On 9 July 2020 the Respondent issued a Notice of Intention to give a Development Control Order - No. 11, [Ex 2 tab 15 folios 160-164] of which relevantly stated: 'As advised in the letter of 13 May 2020, Council has received complaints relating to the incomplete landscaping and fencing works across the front of the stage one area facing Fairway Drive, between your driveway access and the eastern site boundary. This work also impacts upon the rear yard/private open space of the six units in stage one that back onto this section of Fairway Drive. Currently there is a temporary chain wire fence with shade cloth that incorporates advertising generally located on the front property boundary. There is a second temporary timber fence internal to the site and an earthen swale between the two. The swale existed pre-development and conveyed stormwater runoff along Fairway Drive from the large dam within Castle Hill Country Club to the east. The swale was required to remain whilst you undertook the remainder of the Stage 1 works to protect your development and Fairway Drive from flooding/ nuisance stormwater impacts. The large dam has since been reconstructed and the stormwater runoff from the upstream catchment/Castle Hill Country Club is now redirected north to Strangers Creek under Fairway Drive. As a result of this work by others the swale within your property can be removed and the outstanding work linked to stage one of your development completed in accordance with Development Consent 1158/2009/HC (as amended). In this regard your approved plans show landscaping, fencing (including that associated with establishing the proper extent of the rear yard/private open space of the six units in stage one that back onto this section of Fairway Drive) and an additional pedestrian connection to Fairway Drive as per the stamped approved landscape plans referred to in Condition 1 of your consent.' [47] On 17 August 2020 the Respondent received correspondence from the Applicants' Solicitor with representations in response to the Notice of Intention to give a Development Control Order issued by the Respondent. [48] On 21 August 2020 the Respondent issued a Development Control Order No. 11, the subject of this appeal. The Development Control Order provided the following reasons: … 4. The outstanding/incomplete work is necessary to provide suitable pedestrian connectivity to/from Fairway Drive for the approved development (noting that in the absence of the external works required by stage two of the approved development Council has recently undertaken temporary work to partly address this matter). 5. The outstanding/incomplete work is necessary to provide adequate private open space area and security/amenity to the occupants of stage one of the approved development (specifically the six units in stage one that back onto this section of Fairway Drive)."
3. Neither the First Applicant nor the Second Applicant challenged the facts set out in [22] above.
4. Further documentary evidence was tendered in the Council's Bundle of Documents, Ex 2, relevantly as follows: 1. Development Consent 1158/2009/HC dated 13/04/2010 at tab 1 folios 1-29. 2. Architectural and Landscaping approved plans at tab 2 folios 30-49. 3. Modification no. 1158/2009/HC/A dated 20/11/2012 at tab 3 folios 50-71. 4. Modification's approved plans at tab 4 folios 72-86. 5. Modification no. 1158/2009/HC/B dated 30/04/2014 at tab 5 folios 87-93. 6. Construction Certificate No. 1065/2013/KO (CC) dated 2/05/2014 at tab 6 folios 94-97. 7. Architectural plans approved pursuant to CC at tab 7 folios 98-110. 8. Final Occupation Certificate issued by Council dated 29/08/2016 in relation to Stage 1 of the Development Consent at tab 8 folio 111. 9. Correspondence from Council to the applicants dated 13 May 2020 requesting the outstanding works to be completed by 3 June 2020 at tab 14 folios 157-158. 10. Notice of Intention to give a DCO - No 11 dated 9/07/2020 at tab 15 folios 160-164. 11. DCO No. 11 dated 21/08/2020 at tab 16 folios 165-169. 12. Correspondence between James Sarian, CEO of Golf Shore and the residents of the Golf Shore development. The residents of the Golf Shore development are the residents of the 24 units for which the occupation certificate was granted on 28 August 2016 at tab 17 folio 170.
5. Mr Anthony Mancone, was the civil engineering expert for the First Applicant, and Mr Benjamin Hawkins, the Manager, Subdivision and Development Certification, for the Respondent (the Engineers). The Engineers conferred and filed a Joint Expert Report (Ex 3). The Engineers agreed: "(1) The Scope of Works required by the DCO generally consists of the completion of Stage 1 works, internal to the property boundary, under the Development Consent, which have not yet been completed. "Specifically, the works to be completed are: (a) Earthworks to fill and remove the existing drainage swale/channel formation and bring the site levels to the proposed finished surface levels as per the approved drawings, along the Stage 1, Fairway Drive site frontage. (b) Construction of retaining walls and fencing along the Stage 1, Fairway Drive site frontage as per the approved drawings. (c) Completion of the construction of the pedestrian link to Fairway Drive as per the approved drawings, except for the pergola structure at the entry which is not required as part of the works under the DCO. (d) Completion of the landscaping works for Stage 1, as per the approved drawings, except for street trees within the Fairway Drive road reserve which are not required as part of the works under the DCO. … (3) A low level modular retaining wall (up to 1.1m high) is needed to accommodate the existing levels across the back of the units and the existing levels in the road verge along Fairway Drive. This also accounts for the future/proposed levels along Fairway Drive based on the design approved by Council as Construction Certificate 78/2018/EC. This includes the backyard of the units sloping towards the road at a slope of 5%. The wall and the fence stop is to be located 2m from the boundary, as per the approved landscape plan. Construction Certificate 1065/2013/KO for the Stage 1 building works issued by Council shows a 1.8m high fence consisting of brick columns with open style timber inserts. Given the wall is being integrated into this fencing it is agreed a reduced height of 1.2m is acceptable, so the overall height of the structure at its highest point is generally consistent with the approved height. It is agreed there is some flexibility with respect to the final materials and finishes of the wall, columns and inserts subject to this detail being provided to and approved by Council. (4) The Drawings being Attachment A (Exh 3) show the extent of footpath paving overlapping a portion of the existing footpath paving. This existing section internal to the site has been constructed level/too high and needs to be removed and reconstructed to provide grades compliant with the Disability Discrimination Act 1992. … (1) Completing the scope of works outlined in (1) above will resolve the impact on the amenity of residents by: (a) Providing ground floor residents with a completed courtyard and suitable private open space. (b) A pedestrian link to the recently constructed temporary footpath/graded verge in Fairway Drive, compliant with the requirements of the Disability Discrimination Act 1992."
6. Based on the program set out in Attachment B to Ex 3: Scope of Works, a revised completion date/period of compliance of 28 May 2021 is considered reasonable.
7. The First and Second Applicants, and the Council agreed that 28 May 2021 was a reasonable date for compliance with the DCO.
8. Mr Benjamin Hawkins, Council's engineer, gave evidence on 14 December 2020. Mr Hawkins' evidence was: 1. Building A has 6 units on the first floor and on the ground floor. 2. The total number of units built in Stage 1 is 24. 3. In answer to the question: "At the site what occurred whether or not to make an order?", Mr Hawkins replied in words to the effect of: "It was relevant to the issue of amenity. The residents want to see something finished off as a whole; the rest of the development stages too, and their stage as it was a number of years since they moved in. The residents paid around $690,000 as an entry fee. Completion of the streetscape would help them. Two of the units were up for sale: one is a deceased estate which has been vacant for 2 years, and the other unit belongs to a couple where the husband had to be moved to a high care facility and his wife went with him."
9. There are proceedings in the Family Court of Australia between the First and Second Applicants. Relevantly Orders were made in the Family Court on 5 June and 14 August 2020 for the sale of various properties. (Exh BB). (The remainder of [29] is redacted pursuant to s 121 of the Family Law Act 1975 (Cth)).

First Applicant

1. The First Applicant submitted that as Condition 57 was in the "All Stages" section of the Development Consent (Ex 2 folio 51) Condition 57 is not in that part of the Development Consent which deals exclusively with Stage 1 works.
2. On 30 April 2014 the Council modified the Development Consent to specifically require the works to fill in the swale to form part of Stage 2 of the Development Consent (Ex 2 tab 5 folios 91-93).
3. The Council excused the Applicants from compliance with Condition 57 when it granted the Final Occupation Certificate on 29 August 2016 (OC) without the relevant works being done.
4. The landscaping, the subject of the Order in these proceedings, requires the filling of the swale. The Council did not permit the swale to be filled prior to the OC being granted because the swale was necessary for the adjoining Golf Course to drain one of its dams to Strangers Creek. Having issued the OC Council cannot now rely on Order No. 11 in Schedule 5 as if the works in Stage 1 had not been done when Council requested that the swale not be filled in, and notwithstanding that fact issued the OC.
5. Although the First Applicant accepted that the residents of the Golf Shore Retirement Village experienced compromised amenity as a result of the delay in the completion of the works to fill the swale and complete the landscaping works for Stage 1, the First Applicant submitted that the issuing of the DCO was beyond power because of: 1. the Council's decision to modify the Development Consent so that the works to fill in the swale became part of the Stage 2 works; 2. the Council's decision to grant the Final Occupation Certificate for Stage 1. By doing so, Council was estopped from taking proceedings to enforce completion of the Stage 1 works.
6. In relation to the Council's request to substitute Order No. 13 of Schedule 5 for Order No. 11, the First Applicant submitted that although the Court has the power to do so, the Court cannot in this case because such an Order would apply to the whole of the Development Consent and not be confined to the relevant items required to be carried out under Council's Order No.11. In other words the First Applicant contends that should the Court make Order No. 13 that it must apply Order No. 13 to the whole of the works under Stages 1, 2 and 3 of the Development Consent and not confine it to the issues raised in the appealed Order No. 11. The First Applicant relies on the fact that Order No. 13 does not have the words "or part thereof" inserted in Column 1 of Schedule 5.
7. The First Applicant's final submission was: "[25] In light of the very serious consequences of a failure to comply with a DCO the Court would only make an order to uphold or vary a DCO in circumstances where it has a clear power to do so. [26] It is the First Applicant's submission that such a power does not exist in the circumstances of this case."
8. At the end of the submissions the First Applicant was granted leave to re-open and tender Ex B Draft Order No. 11 with Annexure A (being a plan denoting the type of fence to be built).

Second Applicant

1. The Second Applicant's Reply to the Amended Statement of Facts and Contentions (Ex AA) adopted the contentions as raised in the First Applicant's Amended Reply to Fact and Contentions dated 2 December 2020 (Ex A), and further did not concede that the Court has power to substitute the DCO with a DCO No. 13 - Complete Works Order.
2. The Second Applicant objected to Annexure A to Ex B, being a plan denoting the type of fence, the levels of the land, and the pathway to be built should the Court issue Order No 11. The Second Applicant relies upon Ex 2 folio 101 which is the Construction Certificate plan showing the Front Fence Elevation and Fence.

Respondent

1. The Council began its submissions by reminding the Court of the salient facts leading to the issue of the DCO: "Although an occupation certificate has been issued for the first stage of the development, the development site remains an eyesore with temporary construction fencing and an open earthen swale along its frontage in the place of approved private courtyard areas, vegetation, brick pier and timber fencing, and an access path."
2. The Council accepts that a Final Occupation Certificate should not have been issued. "Relevantly to these proceedings, the consent was not complied with. Development which was required to be carried out under conditions 1 and 57 of the consent before the certificate was issued was not."
3. The issue of the Occupation Certificate for Stage 1 does not exonerate the Applicants from completion of the Stage 1 works. In relation to the First Applicant's submission that Council was estopped from issuing the DCO the Council relied upon the findings in Hawkesbury City Council v Sammut; (2002) 119 LGERA 171; [2002] NSWCA 18 at [57]: "The respondent contended that the Council at least was estopped from challenging its own Consent on the basis of ultra vires. The judgment of Windeyer J in Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 at 577 was invoked. Whatever that passage indicates, it does not represent a decision that an ultra vires act, indubitably established in fact, can never be challenged at the suit of the administrator who did it (see generally Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211-214 per Gummow J). In my view Stein J (as he then was) was correct to decide that the public interest in the carrying out of statutory duties requires that a Council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid (Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127)." The Court of Appeal held that a Council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid. Applying that principle to the present case the Council is not estopped from issuing a DCO in circumstances where it has erroneously issued a Final Occupation Certificate.
4. The Council submitted that the Court should impose Order No. 13 of Schedule 5 in lieu of Order No. 11. As set out above the First Applicant submitted that imposing Order No. 13 is beyond power. The Council submitted that the power exists to require the landowner to "complete authorised works under a planning approval within a specified time" where the authorised works have commenced but not been completed. The Council relied upon the following case law.
5. Statutory provisions must be construed having regard to their context and purpose. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at [408] the High Court held (citations omitted): "Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words I a statute being so constrained by their context are numerous. In particular …if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms t the legislative intent."
6. In Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; [1998] HCA 28 at [78] the majority held (citations omitted): "…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning [citations omitted]."
7. The Council then made submissions on "context" and "purpose": 1. The expression "authorised works" is not defined in the EPA Act. In the context in which it appears, it is clearly a reference to works authorised by a planning approval (such as a development consent). There is nothing in the ordinary meaning of those words to suggest that it is a reference to all works authorised by a planning approval. 2. There is no other reference to the expression "authorised works" in the EPA Act to assist in determining its meaning. The EPA Act does contain a reference to "authorised subdivision works" in item 11 of the table. That provision permits an order to be given requiring a landowner to carry out works associated with a subdivision when "authorised subdivision works…have not been carried out". It would make a mockery of that provision to suggest the reference to authorised subdivision works was a reference to all such works. It would effectively prevent an order to except where all authorised works had not been carried out, rather than only when such work was partially completed. 3. The provision of the EPA Act dealing with the issue of development control orders have no expressly stated objectives. The objects of the EPA Act as a whole provide some guidance. They include relevantly: to protect the environment, and to promote amenity of the built environment: ss 1.3(e) and (g). 4. Item 13 of the table to Schedule 5 permits an authority to require a landowner to "complete authorised works under a planning approval within a specified time". No doubt having regard to the objects of the EPA Act, an implicit purpose of this provision is to avoid the potential adverse impacts from an unsightly construction site remaining as such indefinitely. 5. The purposes of the Act and the provision (to protect the environment, promote amenity, and avoid unsightly construction sites) are not necessarily best served by adopting a narrow construction of the provision which limits an authority's power under item 13 to issue an order which requires all of the authorised works to be completed within a specified time. Sometimes there will be cases where a preferable approach is to require that part of the development be completed to ensure an acceptable visual or amenity impact. Incomplete building sites may frequently be a symptom of lack of duns to complete an entire development. To construe item 13 in a way that requires all of the works authorised by a consent to be the subject of an order in those cases may be counter-productive, and hinder the attainment of the objects of the provision.

Findings

1. On 13 October 2010 the Council granted consent for a seniors living development comprising 119 units at 20 Fairway Drive, Kellyville. The approved plans included landscape plans showing courtyards to six units (including boundary fencing, lawns and vegetation), fencing to the boundary with Fairway Drive, a pedestrian walkway with a 1:14 gradient providing access to the property, and trees and other foliage along the Fairway Drive frontage.
2. That area is currently occupied by a temporary chain wire fence, a temporary timber fence approximately 4m within the boundary of the 6 Units' courtyards, and an earthen swale.
3. On 20 November 2012 the consent was modified to include a staging plan for 3 stages. The original consent plans, including the landscape plans, remained part of the modified consent. Stage 1 of the development included 3 buildings, and relevantly courtyards to the 6 Units, the brick and timber fencing, vegetation and pathway shown in the Landscape plans.
4. On 30 April 2014 the consent was further modified, and inter alia included condition 79A - subclause (vi) which provided that the existing swale that runs along the site's frontage to Fairway Drive must be removed prior to the issue of a construction certificate for Stage 2.
5. On 2 May 2014 a Construction Certificate was issue for Stage 1 of the development. The Construction Certificate plans showed a more detailed plan of the front boundary fence (Exh 2 tab 7 folio 101).
6. On 29 August 2016 the Council issued an Occupation Certificate for Stage 1 of the development (Ex 2 tab 8). The Council issued the Occupation Certificate at the request of the Applicants, and as the drainage swale was still in use, Council issued the Occupation Certificate notwithstanding that the works, the subject of the DCO, were incomplete.
7. The works to be carried out by the adjoining owner, Castle Hill Golf Club, to pipe its stormwater over other land, was completed by January 2018. The Applicants have had the opportunity to complete the Stage 1 works since January 2018.
8. The issue of the Occupation Certificate for the Stage 1 works enabled the Applicant to settle the occupation fee for the 24 units completed at that time, minus the works set out in the DCO. Each of the residents paid around $690,000 as an entry fee for their occupation. The owners of the occupation rights to the 6 Units paid notwithstanding that each of their courtyards was diminished in size pending completion of the works as set out in the DCO.
9. A primary reason for Council issuing a Notice of Intention to give an Order, and the subsequent DCO was the issue of amenity to the residents of the 24 units, and in particular the 6 Units. Further 2 of the units were for sale: one a deceased estate which had been vacant for 2 years and the other where a resident needed to move into High Care at another facility. The streetscape from Fairway Drive is not conducive to the sale of the 2 units in question. There is also correspondence from the residents in Ex 2 tab 18 folios 171-180.
10. Although the Occupation Certificate was issued minus the relevant works being carried out, the Applicants relied upon the fact that Council requested the Occupation Certificate be issued minus the relevant works. However, the Applicants also gained an advantage in that they were able to settle 24 units and receive the financial benefit from that settlement. Neither the Applicants nor the Council gave evidence as to what conversations or oral agreements, if any, occurred at the time of the issuing of the Occupation Certificate.
11. On 13 May 2020 the Council wrote to the Applicants requesting the work to complete Stage 1 be carried out, citing complaints by the occupiers of the units in the Stage 1 development, and giving the Applicants until 3 June 2020 to complete the works.
12. On 9 July 2020 the Council issued a Notice of Intention to give a Development Control Order - No. 11.
13. On 21 August 2020 the Council issued Development Control Order No. 11.
14. On 18 September 2020 the Class 1 Application was filed by the First Applicant. The Second Applicant was joined as a party on 29 October 2020. The Class 1 Application was filed in accordance with the provision of s 8.18(3)(a) of the EPA Act.
15. In accordance with Council's submissions, I find that the Council is not estopped from issuing a development control order.
16. I do not accept the submissions by the First Applicant that the Court does not have power to issue a Development Control Order - Schedule 5 No. 13 because it would require the Applicants to construct the remainder of Stage 1, and Stages 2 and 3 of the Development Consent on the basis that the Applicants must complete all authorised works. Only the plans for Stage 1 have been given consent, and only the Stage 1 works are included in the DCO.
17. I do not accept the First Applicant's argument that the insertion of Condition 79A in the second modification approval prevents the works, subject of the DCO, to be carried out. The DCO requires the works as set out in the approved plans for Stage 1 to be completed. Those works by necessity include the filling of the swale in order for the 6 Units to have their courtyards completed. Following the First Applicant's arguments to their conclusion means that the Council has no power to require the remaining works in Stage 1 to be carried out. The Applicants have had since the swale was no longer in use as a drainage swale from January 2018 to complete the works. The existing swale, the temporary fencing both to the rear of the 6 Units and on the boundary with Fairway Drive are extremely unattractive from a streetscape point of view, and do not do justice to the 24 unitholders who paid approximately $690,000 entry fees to the First and Second Applicants on or about the end of 2016 or 2017.
18. There was a dispute between the First and Second Applicant as to the form of the fence to be constructed along Fairway Drive. The First Applicant submitted that it should be constructed in accordance with Ex B and the Second Applicant submitted it should be constructed in accordance with Ex 2 tab 7 folio 101. The First Applicant's plan is dated 14 December 2020 Rev 02 by Mr A Mancone of C & M Consulting Engineers. The Second Applicant's fence is the Council approved plan dated 13 January 2014 as part of the Construction Certificate plans. The plan in Ex 2 folio 101 is the plan most likely to have been given to the occupiers of the 24 units in Stage 1 and is therefore the most appropriate plan for the front boundary fence.
19. In relation to the 3 contentions I find as follows: 1. The Occupation Certificate does not prevent the Council from requiring the works to be done, as set out in the DCO. 2. The Court has power to make an order in relation the DCO. 3. The impact on the amenity of the residents of the 24 units existing units of the Golf Shore - Sarian Retirement Village, particularly the 6 Units, is a relevant consideration in granting the Order (LEC Act s 39(4)).
20. The relevant development control order to be given is Schedule 5 Order No. 13, and although the parties have agreed that compliance should be 28 May 2021, I amend that date to 28 June 2021 to ensure the Applicants have time to comply with the Order.

Orders

1. The Court orders: 1. The appeal is upheld in so far as the date for compliance with the Order set out in (2) below. 2. Development Control Order pursuant to Schedule 5, Part 1, Order No 13 of the Environmental Planning and Assessment Act 1979 in accordance with Attachment A hereto, noting the compliance date to be 28 June 2021. 3. Exhibits are returned except for Exhibits A, 1, 2, 3, AA and BB.

Acting Commissioner of the Court Attachment A (526846, pdf)

Amendments 08 February 2021 - Amended on 5 February 2021: Pursuant to UCPR r 36.17, paragraph [29] is redacted from the end of the second sentence to the end of the paragraph pursuant to s 121 of the Family Law Act 1975 (Cth). 19 February 2021 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, by the request of the Respondent and the Court's own motion, amend Attachment A to include the 'Fence Plan' being Ex 2, tab 7, folio 101. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2021