Alstonville Agricultural Society Inc v Ballina Shire Council

[2024] NSWLEC 1250

Land and Environment Court

New South Wales

Medium Neutral Citation:

Alstonville Agricultural Society Inc v Ballina Shire Council [2024] NSWLEC 1250

Hearing dates:

Conciliation conference on 30 April 2024

Date of orders:

15 May 2024

Decision date:

15 May 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The development control order dated 21 September 2023 issued by the Respondent to the Applicant, pursuant to Division 9.3 and Schedule 5 of the Environmental Planning and Assessment Act 1979 in respect of the premises identified as Lot 2 DP 1031929 known as 22-40 Commercial Road, Alstonville, is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979. The order, as modified, is set out in Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER – stock yard – conciliation conference – amended order – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.18, Sch 5, Pt 1

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

Alstonville Agricultural Society Inc (Applicant)
Ballina Shire Council (Respondent)

Representation:

Counsel:
J Marquet (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/316877

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings arise as a result of a Development Control Order, No. 406.2022.4061825.1 (the Order), issued by the Respondent, Ballina Shire Council, to the Applicant, Alstonville Agricultural Society Inc. on 21 September 2023.

2. The Order relates to stock yards that have been built along the eastern boundary of the Alstonville Showground, a privately owned and run showground within a residential area located at 22-40 Commercial Road, Alstonville, Lot 2 DP 1031929. The Order essentially requires the cessation of all unapproved works and all use of unapproved works on the subject premises, the removal of all stock yards, fencing and associated works, and restoration of the premises to its condition prior to this unauthorised construction.

3. These Class 1 proceedings have been brought to the Court pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act). The powers set out in s 8.18(4) are as follows:

(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.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on  30 April 2024. I presided over the conciliation conference.

5. After 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 amending the Order in accordance with the parties’ agreed terms (the amended Order). The amended Order modifies the time period for compliance with Order 3, the removal of the stock yards, fencing and associated works and rectification of the premises to allow for the determination or withdrawal of a development application DA2023/504. This development application seeks consent, amongst other things, for the use of the existing stock yards.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

7. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to modify the development control order. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following:

1. The EPA Act Sch 5 Pt 1 Item 2 allows a Stop Works Order to be issued to the owner of the premises to stop building work carried out in contravention of the Act. The stock pen structures were constructed without development consent, and therefore in contravention of the Act.

2. EPA Act Sch 5 Pt 1 Item 1 allows for a Stop Use Order to be issued to the owner of a premises to stop using those premises if they are being used:

1. for a purpose for which a planning approval is required but has not been obtained, or;

2. in a manner that was not regulated or controlled by a public authority, or;

3. in a manner that constitutes or is likely to constitute a threat to public health.

3. The use of the stock holding pen structures would be for a purpose for which planning approval is required. Further, the parties submit, and I accept that the unregulated operation of said stockyards may constitute a threat to public health as it is likely to involve the emission of noise, odour, untreated stormwater and pathogens to the surrounding environment including nearby residences and a watercourse.

4. EPA Act Sch 5 Pt 1 Item 3 allows for a Demolish Works Order to be issued to the owner of a premises in relation to a building where the building was erected without requisite approval. The stock holding pens were erected without requisite development consent.

8. Subsequently, the amended Order can be made pursuant to Items 1, 2 and 3 of Schedule 5 to the EPA Act. Accordingly, I am satisfied that pursuant to the provisions of s 8.18(4)(b) and (f), I have power to modify the development control order in accordance with the parties’ decision.

9. For these reasons 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.

10. 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.

11. The Court orders:

1. The appeal is upheld.

2. The development control order dated 21 September 2023 issued by the Respondent to the Applicant pursuant to Division 9.3 and Schedule 5 of the Environmental Planning and Assessment Act 1979 in respect of the premises identified as Lot 2 DP 1031929 known as 22-40 Commercial Road, Alstonville, is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979. The order, as modified, is set out in Annexure A.

E Washington

Acting Commissioner of the Court

316877.23 Annexure A

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Decision last updated: 15 May 2024