Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 17:

1.This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (No EPA0111/23 dated 17 May 2024) issued by the respondent under s 9.34(1) and Pt 1 of Sch 5 of the EPA Act (DCO) to the applicant in relation to land identified as Lot 51 in Deposited Plan 551115 and known as 125A Eastern Road Turramurra NSW 2074 (Site). The DCO comprised Order No 3 - Demolish Works Order, which required the applicant to demolish the erected shelter/awning structure that had been constructed at the rear and side of the Site over the existing swimming pool area and air conditioning unit which had been constructed without consent.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Site is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP).

4. The Site is owned by the applicant.

5. At the time the DCO was issued, the following works had been carried out at the Site (collectively, the Works):

1) construction of an awning roof on the side (north-east) elevation of the existing subject dwelling (Awning); and

2) pergola over the swimming pool (Pergola).

6. It was the respondent's contention that these Works:

1) were constructed without consent and were unlawful;

2) did not comply with development standards as set out in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; and

3) had not had an assessment of impact in terms of amenity or the environment, including regarding adequate stormwater disposal.

7.The applicant commenced Class 1 proceedings on 7 June 2024, being within the time period specified in s 8.18(3) of the EPA Act.

8. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 11 November 2024 and adjourned on two occasions. I presided over the conciliation conference.

9. During the conciliation process, the parties reached agreement as to the resolution of the proceedings. The agreement reached is for the DCO to be modified (Modified Order). The Modified Order generally requires the applicant to:

1) demolish the Awning; and

2)partially demolish the Pergola so that it is further setback from the north-eastern side boundary of the Site,

3) by 30 April 2025.

10. The parties provided a signed s 34 agreement reflecting the above agreement on 4 December 2024.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193be2960122c170a188431d)

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