Asfour v Yass Valley Council

[2024] NSWLEC 1019

Land and Environment Court

New South Wales

Medium Neutral Citation:

Asfour v Yass Valley Council [2024] NSWLEC 1019

Hearing dates:

Conciliation Conference on 23 November 2023

Date of orders:

24 January 2024

Decision date:

24 January 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

In Proceedings 2023/188944, the Court orders that:

(a)   The appeal is upheld.

(b) Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act1979, Development Order C47H22/23 dated 18 May 2023 is modified in accordance with the Modified Order filed at the Land and Environment Court on 21 December 2023.

In proceedings 2023/188957, the Court orders:

(a)   The appeal is upheld.

(b) Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, Development Order C47122/23 dated 18 May 2023 is modified in accordance with the Modified Order filed at the Land and Environment Court on 21 December 2023.

Catchwords:

Development Control Orders – agreement reached – orders modified.

Legislation Cited:

Environmental Planning & Assessment Act 1979, ss 8.18, 9.34, Part 1 Sch 5

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Khaled Jamal Asfour (Applicant)
Yass Valley Council (Respondent)

Representation:

Counsel:
T Zreika (Applicant)
A Menyhart (Respondent)

Solicitors:
Stirling Legal (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2023/188944
2023/188957

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These are two appeals as follows.

1. 2023/188944 - An appeal against the Development Control order issued by the respondent, Yass Valley Council, pursuant to s 9.34(1) of the Environmental Planning & Assessment Act 1979 (the EPA Act) dated 18 May 2023. The order is a ‘Stop Use Order & Restore Works Order’ pursuant to Item 1 and Item 10 of the table in Part 1 of Schedule 5 of the EPA Act in respect to works at lot 7 DP 285245, known as 5 Ambleside Avenue, Murrumbateman. In summary, this order was to:

1. immediately stop use of the Building as a dwelling;

2. restore the Building to the condition it was before unlawful building works and other works occurred by no later than 4pm, 17 August 2023 ;

3. lawfully dispose of waste generated from restoration works and implement incident prevention and environmental safety controls whilst restoration work is taking place; and

4. arrange a further Council inspection of the Building.

2. 2023/188957 - An appeal against the Development Control order issued by the respondent, Yass Valley Council, pursuant to s 9.34(1) of the EPA Act dated 18 May 2023. The order is a ‘Stop Use Order & Demolish Works Order’ pursuant to Items 1 and 3 of the table in Part 1 of Schedule 5 of the EPA Act in respect to works at lot 7 DP 285245, known as 5 Ambleside Avenue, Murrumbateman. In summary, this order was to:

1. immediately stop use of the Building;

2. demolish the Building by no later than 4pm, 17 August 2023

3. implement incident prevention and environmental safety controls whilst demolition works were being carried out, lawfully dispose of waste generated from the demolition works and return the area where the Building was to a safe and healthy condition by 18 August 2023; and

4. arrange a further Council inspection of the premises.

2. The orders arise from the position that the use of the “shed” on the site does not extend to the use of the building as a dwelling, a use for which the respondent says the necessary development consent has not been obtained. A second set of orders pertain to the erection and use of a workshop on the property, for which the respondent also says, that the necessary development consent has not been obtained.

3. It is not disputed between the parties that the relevant works require development consent. The parties agree that grounds for the issue of the orders, which listed in Part 1 to Schedule 5 of the EPA Act and which are the basis for issuing Development Control Orders, are applicable in this matter.

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over the conciliation conference which was held on 23 November 2023.

5. The parties advised the Court that an agreement under s 34(3) of the LEC Act was capable of being reached. The decision agreed upon by the parties is that the appeal be upheld and that the two Development Control Orders be modified, pursuant to s 8.18(4) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to make the requested orders, to modify the Development Control Orders, is a decision that the Court could have made in the proper exercise of its functions. Accordingly, I am required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties decision. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware, of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ various agreements under s 34(3) of the LEC Act are:

8. The Court orders that:

1. In respect to proceedings 2023/188944 – the Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act1979, Development Order C47H22/23 dated 18 May 2023 is modified in accordance with the Modified Order filed at the Land and Environment Court on 21 December 2023.

2. In respect to proceedings 2023/188957 – the Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, Development Order C47122/23 dated 18 May 2023 is modified in accordance with the Modified Order filed at the Land and Environment Court on 21 December 2023.

Stuart Harding

Acting Commissioner of the Court

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Decision last updated: 25 January 2024